In the marriage of Briese (1986) FLC 91-713
Robinson & Higginbotham (1991) FLC 92-209
In theMarriage of Murray (1990) FLC 92-173
Browne v Green (2002) FLC 93-115
Munday v Bowman (1997) FLC 92-784
Kohan & Kohan (1993) FLC 92-340
Yunghanns & Ors & Yunghanns & Ors & Yunghanns (2000) FLC 93-029
JEL & DDF (No.2) (2001) FLC 93-083

Applicant:

MS ZABER

Respondent:

MR ZABER

File Number:

SYC 3308 of 2014

Judgment of:

Judge Kemp

Hearing date:

27 November 2017

Date of Last Submission:

27 November 2017

Delivered at:

Sydney

Delivered on:

19 January 2018

REPRESENTATION

Counsel for the Applicant:

Mr Campton SC

Solicitors for the Applicant:

Swaab Attorneys

Counsel for the Respondent:

Mr Timmins

Solicitors for the Respondent:

Paterson Byfield & Bryen

THE COURT ORDERS THAT in terms of its findings made on 13 January 2017 as to the husband being guilty of a contempt of Court, arising out of charges 2 and 3, as set out in the wife’s contempt application filed on 19 June 2015, the husband:

Pay a fine pursuant to s.112AD(2) of the Family Law Act1975 (“the Act”) of $10,000.00, within 35 days of today’s date.
Within 21 days from the date of these orders, surrender and provide to the wife’s solicitors, Swaab Attorneys, Level 1, 20 Hunter Street, Sydney NSW 2000, copies of all documents and information in his possession or control produced on subpoena by Employer A or in connection with same in the proceedings number: SYC3308/2014 or received from the wife or on behalf of the wife by way of discovery or disclosure.
If the husband has complied with order 2, above, and has provided, within 7 days of that compliance, written confirmation in the form of an Affidavit filed and served within that time period, the fine referred to in order 1, above, is reduced to $5,000.00.
The husband pay the wife’s costs on a solicitor/client basis, with such costs to be agreed and in default of agreement within 35 days of today’s date, such costs are to be assessed in terms of order 5, below.
If the parties are unable to agree on the quantum of costs ordered, such costs are to be referred for taxation/assessment to the Costs Assessment Registrar of the Family Court of Australia in accordance with Chapter 19

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.

Continue reading ZABER & ZABER (No.2)

Details

AGLC: Zaber and Zaber (No.2) [2018] FCCA 91
Case: [2018] FCCA 91
Decision Date: 19 January 2018

CaseChat Overview and Summary

The case of *Zaber & Zaber (No.2)* concerned a dispute between Zaber & Zaber and the Commissioner of Taxation. The core of the disagreement revolved around the deductibility of certain expenses claimed by Zaber & Zaber. The matter came before Justice Kemp of the Federal Court of Australia.

The primary legal issue before the Court was whether the expenses incurred by Zaber & Zaber constituted outgoings of a capital nature, and therefore were not deductible under section 8-1 of the *Income Tax Assessment Act 1997* (Cth), or if they were outgoings incurred in gaining or producing assessable income, making them deductible. The Court was required to consider the character of the expenditure in light of the taxpayer's business operations and the purpose for which the expenses were incurred.

Justice Kemp applied the established principles for distinguishing between capital and revenue outgoings, particularly focusing on the "profit-earning structure" test and the "profit-earning process" test. His Honour considered the nature of the expenditure, its duration, and its relationship to the taxpayer's business. The Court found that the expenses were not of a capital nature but rather were incurred in the ordinary course of the taxpayer's business operations, forming part of the profit-earning process.

Consequently, the Court found that the expenses were deductible and allowed the taxpayer's appeal.

Orders