Commissioner of Taxation v Tomaras [2018] HCA 62

HIGH COURT OF AUSTRALIA

KIEFEL CJ, GAGELER, KEANE, GORDON AND EDELMAN JJ

COMMISSIONER OF TAXATION FOR THE COMMONWEALTH OF AUSTRALIA APPELLANT

AND

TOMARAS & ORS RESPONDENTS

Commissioner of Taxation v Tomaras [2018] HCA 62 13 December 2018 B9/2018

ORDER

1. The question of law stated by the trial judge for the opinion of the Full Court of the Family Court of Australia should be answered as follows:

Question

"Does s 90AE(1)-(2) of the Family Law Act 1975 (Cth) grant the court power to make Order 8 of the final orders sought in the amended initiating application of the [w]ife?",

where proposed Order 8 was amended to read:

"Pursuant to section 90AE(1)(b) of the Family Law Act 1975 (Cth), in respect of the [wife's] indebtedness to the Commissioner of Taxation for the Commonwealth of Australia [for] taxation related liabilities in the amount of $256,078.32 as at 9 August 2016 plus General Interest Charge (GIC), the [husband] be substituted for the [wife] as the debtor and the [husband] be solely liable to the Commissioner of Taxation for the said debt."

Answer

Although in relation to a debt owed to the Commonwealth by a party to a marriage s 90AE(1) confers power to make an order that the Commissioner be directed to substitute the husband for the wife in relation to that debt, it is otherwise inappropriate to answer the question without it being found, or agreed, that, within the meaning of s 90AE(3), the making of the order is reasonably necessary, or reasonably appropriate and adapted, to effect a division of property between the parties to the marriage, and it is not foreseeable at the time that the order is made that to make the order would result in the debt not being paid in full; and without the court being satisfied that, in all the circumstances, it is just and equitable to make the order.