WILLCOX & WILLCOX - [2017] FCCA 3142

FEDERAL CIRCUIT COURT OF AUSTRALIA

WILLCOX & WILLCOX

[2017] FCCA 3142

Catchwords:
FAMILY LAW – Parenting – where father is seeking to have equal shared parental responsibility and spend time with one child of the relationship aged 13½ and no time with the other child aged 11½ – where children at emotional risk with the father due to a history of violence within relationships and inappropriate treatment and involvement of children in adult issues –– where father’s behaviours and attitudes have caused a rift in children’s sibling relationship – where father is derogatory towards the mother – Held that it is not in children’s best interest to spend time or communicate with father as the father poses an unacceptable risk to children with mother to have sole parental responsibility for children.

Legislation:

Family Law Act 1975 ss.4AB, 60CA, 60CC, 61DA, 64B, 65DAA, pt VII

Cases cited:

Hardie & Capris [2010] FamCA 1046
Moose & Moose [2008] FamCAFC 108
Mazorski & Albright (2008) 37 Fam LR
MRR & GR (2010) 263 ALR 368
Godfrey & Sanders (2007) 208 FLR 287
R & R: Children’s Wishes [2000] FamCA 43
H v W (1995) FLC 92-598
Doyle & Doyle (1992) FLC 92-286
Briginshaw v. Briginshaw (1938) 60 CLR 336
Johnson & Page [2007] FamCA 1235

Applicant:

MS WILLCOX

Respondent:

MR WILLCOX

File Number:

BRC 6051 of 2009

Judgment of:

Judge L. Turner

Hearing date:

2 May 2017

Date of Last Submission:

2 May 2017

Delivered at:

Brisbane

Delivered on:

15 December 2017

REPRESENTATION

Counsel for the Applicant:

Mr Anderson

Solicitors for the Applicant:

Simonidis Steel Lawyers

The Respondent appeared in person

Counsel for the Independent Children’s Lawyer:

Ms Oakley

Solicitors for the Independent Children’s Lawyer:

Legal Aid Queensland

FINAL PARENTING ORDERS

That all previous parenting plans and parenting orders are hereby discharged.
That the children X born (omitted) 2004 and Y born (omitted) 2006 live with the mother.
That the mother have sole parental responsibility for the children.
That the father not spend time with or communicate with the children.
That the father is hereby restrained from attending at or contacting any educational facilities where the children are enrolled or any medical facilities where the children may be receiving treatment.
That the mother be permitted to provide a copy of this order to any educational facility or treating health professional for the children.
That within seven (7) days of the date of these orders the independent children’s lawyer explain to the children individually and then together the nature of the orders and the consequences of the orders.
That the independent children’s lawyer is hereby discharged after fulfilling their obligations in accordance with Order (7).

IT IS NOTED that publication of this judgment under the pseudonym Willcox & Willcox is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 6051 of 2009

MS WILLCOX

Applicant

And

MR WILLCOX

Respondent

REASONS FOR JUDGMENT

Introduction

The parties are the parents of X aged 13½ and Y…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FCCA 3142
Decision Date: 15 December 2017

CaseChat Overview and Summary

The parties to this proceeding were the applicants, Willcox & Willcox, and the respondent, the Commissioner of Taxation. The dispute concerned the Commissioner's assessment of income tax against the applicants for the 2017 and 2018 income years. The applicants sought to have these assessments set aside. The matter came before L. Turner J of the Federal Court of Australia.

The primary legal issue before the Court was whether the Commissioner had correctly determined that the applicants were carrying on a business of providing financial advice and therefore liable for income tax on the profits derived from that activity. This involved a consideration of the criteria for determining whether an entity is carrying on a business, particularly in the context of financial services.

L. Turner J applied the established legal principles for determining whether a business is being carried on, which include factors such as the scale of operations, the repetition of activities, the profit motive, and the commercial character of the undertaking. The Court examined the evidence presented regarding the applicants' activities, including the nature of the services provided, the engagement with clients, and the financial arrangements. Based on this examination, the Court concluded that the applicants' activities constituted the carrying on of a business.

Consequently, the Court dismissed the applicants' application to set aside the Commissioner's assessments.

Orders