Federal Magistrates Court of Australia
Judgments
Significant and New Judgments
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21 May 2012
FAMILY LAW
Scott & Bellow [2012] FMCAfam 338
FAMILY LAW – De facto – property – six and a half year relationship – applicant higher income earner – respondent re-skilled – common aim to build wealth through property development – no children.
Tate & Ralph [2012] FMCAfam 279
FAMILY LAW – Parenting matter – allegations that the father has abused family members – father convicted in March 2011 of six counts of indecent acts with a child under the age of 16 and two counts of indecent assault – father denies all allegatiowns made – mother alleges father should spend no time with the child due to the risk of abuse to the child by the father – mother seeking sole parental responsibility – father seeking supervised time with the child until the child attains the age of 16 – Court satisfied that there would be an unacceptable risk of abuse to the child if the child were to spend time with his father – no time ordered – the child to live with the mother and the mother to have sole parental responsibility.
BANKRUPTCY LAW
Clear Hall & Ors v Moloney [2012] FMCA 216
BANKRUPTCY – Challenge to bankruptcy notice on the basis that the applicants have a set-off of greater value than the respondent’s judgment debt, which could not have been set up in the proceedings leading to that debt – respondent’s debt taken by assignment from a person who was engaged in proceedings against the applicants which gave rise to the debt – whether mutuality which formerly existed removed by the assignment of the debt – whether equitable set-off available following the assignment.
MIGRATION LAW
Singh v Minister for Immigration & Anor [2012] FMCA 145
MIGRATION – Review of Migration Review Tribunal decision – refusal of a skilled graduate visa – applicant allegedly supplying false information about his employment for the purposes of obtaining a skills assessment from Trade Recognition Australia – TRA not approved for skills assessment for the purposes of the visa criteria at the time of the Tribunal decision – information provided by the applicant only relevant to visa criteria which were inoperative – jurisdictional error established.
SZQOY v Minister for Immigration & Anor [2012] FMCA 289
MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal.
ADMINISTRATIVE LAW – Allegation that Refugee Review Tribunal’s decision affected by jurisdictional error by reason that it denied the applicant procedural fairness, ignored her claims, did not believe her, made findings unsupported by the evidence, failed to have regard to relevant material, took an irrelevant consideration into account and was overbearing.
ADMINISTRATIVE LAW – Refugee Review Tribunal – when functus officio.
SZQQC v Minister for Immigration & Anor [2012] FMCA 410
MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal.
ADMINISTRATIVE LAW – Allegation that the Refugee Review Tribunal’s decision affected by jurisdictional error by reason that it denied the applicant procedural fairness; unreasonably, illogically and irrationally refused to grant an adjournment; failed to exercise its discretion under s.426A of the Migration Act 1958 properly; failed to comply with s.425 and was ostensibly biased.
ADMINISTRATIVE LAW – Refugee Review Tribunal – requirements for effective lodgment of documents.
ADMINISTRATIVE LAW – Refugee Review Tribunal – when functus officio.
SZQVH v Minister for Immigration & Anor [2012] FMCA 246
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Sri Lanka – applicant disbelieved in important respects – applicant given opportunity to provide documents after the Tribunal hearing – applicant submitting an explanation as to why he was unable to provide further documents, which included a link to an internet web page – whether a document that would be found by following this link was information that the Tribunal was required to take into account considered.
Vyas & Anor v Minister for Immigration & Anor [2012] FMCA 92
MIGRATION – Review of Migration Review Tribunal decision – refusal of a skilled residence visa – first applicant providing English language test results in support of her visa application – applicant invited to comment on outcome of verification of the test results – insufficient information provided to the applicant to enable her to meaningfully comment for the purposes of s.359A of the Migration Act 1958 (Cth).
3 May 2012
FAMILY LAW
Burns & Grint (SSAT Appeal) [2012] FMCAfam 347
CHILD SUPPORT – SSAT – Judicial review – tribunal set aside decision then under review and substituted a new decision – alleged grounds lacking in particulars – applicant seeks impermissible merits review.
MIGRATION LAW
Singh v Minister for Immigration & Anor [2012] FMCA 145
MIGRATION – Review of Migration Review Tribunal decision – refusal of a skilled graduate visa – applicant allegedly supplying false information about his employment for the purposes of obtaining a skills assessment from Trade Recognition Australia – TRA not approved for skills assessment for the purposes of the visa criteria at the time of the Tribunal decision – information provided by the applicant only relevant to visa criteria which were inoperative – jurisdictional error established.
SZQOY v Minister for Immigration & Anor [2012] FMCA 289
MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal.
ADMINISTRATIVE LAW – Allegation that Refugee Review Tribunal’s decision affected by jurisdictional error by reason that it denied the applicant procedural fairness, ignored her claims, did not believe her, made findings unsupported by the evidence, failed to have regard to relevant material, took an irrelevant consideration into account and was overbearing.
ADMINISTRATIVE LAW – Refugee Review Tribunal – when functus officio.
SZQVH v Minister for Immigration & Anor [2012] FMCA 246
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Sri Lanka – applicant disbelieved in important respects – applicant given opportunity to provide documents after the Tribunal hearing – applicant submitting an explanation as to why he was unable to provide further documents, which included a link to an internet web page – whether a document that would be found by following this link was information that the Tribunal was required to take into account considered.
3 April 2012
FAMILY LAW
De Maio & Auguste [2012] FMCAfam 173
FAMILY LAW – Children – allegations of family violence – where mother and the ICL both oppose father spending time with the children – assessment of risk – no unacceptable risk of abuse – whether appropriate to make findings that alleged abuse did not occur – assessment of parenting capacity – nature of children's relationship with father – proceedings adjourned for approximately 12 months to assess development of children's relationship with father.
Gates & Capps (No.2) [2012] FMCAfam 153
FAMILY LAW – Sibling sexual abuse allegations – implications for previously made parenting orders – best interest considerations for children the subject of the proceedings and for child not the subject of proceedings – relevance of criminal proceedings in Children’s Court – criminal capacity of a child, doli incapax & considerations for sibling relationships.
Victor & Martin & Anor [2012] FMCAfam 78
FAMILY LAW – Children – contested residence dispute over children aged 8 and 5 between Mother and biological sister – Father in the proceedings is biological parent of only one child – biological parent of older child not participating in proceedings at this time – allegations that Mother has a personality dysfunction which presents a risk to the children – Mother has been primary carer – interim order in December 2010 changing the children’s residence to sister – 18 year old sister moving from support for older sister to Mother – post change of residence, allegations of sexual abuse by Father arise – Mother videos children’s disclosures – DHS maintain extensive involvement of family – three family reports issue – psychiatric and neuropsychological evidence produced as to the functioning of parents – generational conflict and allegations Mother maintains a lifestyle and behaviour which represents an emotional and psychological risk to the children.
Final order made for children to live with sister and to spend time unsupervised with Father – further submissions required before Court can determine whether Mother’s supervised time with children occur by an interim order or by final order with a “sunset clause” – submissions as to form of “sunset clause” required.
Weirs & Weirs [2012] FMCAfam 247
FAMILY LAW – Contempt application – breaches of orders pursuant to s.112AP of the Family Law Act 1975 – order to serve a term of imprisonment.
ADMINISTRATIVE LAW
Kaur v Minister for Immigration & Anor [2012] FMCA 239
PRACTICE AND PROCEDURE – Orders – set aside orders – where applicant did not attend first court date – where original application for review of Migration Review Tribunal dismissed – where applicant claimed non-appearance due to fraud of migration agent – where applicant had signed application and affidavit – where applicant claimed to not understand difference between court and Tribunal and that agent had not explained documents to her – where respondent’s representatives sent letter with details of first court date to agent – where applicant claimed not to receive letter – where respondent’s representative claimed she had conversed with applicant about first court date and that applicant said she knew about the hearing date – whether applicant knew of application to Federal Magistrates Court – whether applicant knew of first court date – whether applicant had good reason for not attending hearing – whether applicant has an arguable case – whether to set aside order.
CONSUMER LAW
Staples Waste Removals Pty Ltd v Arev Computer Centre Pty Ltd & Ors (No.2) [2012] FMCA 214
COMMERCIAL LAW – Acquisition and sale of generic internet domain name – informal arrangement initiated by computer consultant – agency relationship between domain name licensee and consultant – whether consultant owned beneficial interest in value of domain name – transfer and sale of domain name without authority from licensee – breach of fiduciary duties – liability to equitable compensation – assessment of compensation – allowance for skill and effort by consultant – accessorial liability of consultant’s solicitor – contraventions of Trade Practices Act – no award of exemplary damages for deceit.
MIGRATION LAW
SZQPA v Minister for Immigration & Anor [2012] FMCA 123
MIGRATION – Review of Independent Merits Review report and recommendation – applicant claiming persecution in Sri Lanka – Reviewer finding the applicant’s fear not well-founded – Reviewer accepting that the applicant would be detained and interrogated – Reviewer failing to address the risk of physical harm during interrogation – error found.
WZAPN & Ors v Minister for Immigration & Anor [2012] FMCA 235
MIGRATION – Judicial review – offshore entry person – decision of Independent Merits Reviewer – whether a migration decision.
MIGRATION – Judicial review – offshore entry person – entitlement of applicant to be present at hearing of judicial review application – whether entitled to be present at all, in person or by video or audio link.
COURTS AND JURISDICTION – Federal Magistrates Court – migration – offshore entry person – judicial review of decision of Independent Merits Reviewer – whether migration decision within jurisdiction.
WORDS AND PHRASES – “migration decision” – “immigration detention”.
19 March 2012
FAMILY LAW
Bryson & Bryson [2012] FMCAfam 197
FAMILY LAW – Setting aside a Binding Financial Agreement – property settlement consequent on the setting aside of the Agreement.
Crabbe & Crabbe and Child Support Registrar (SSAT Appeal) [2012] FMCAfam 205
CHILD SUPPORT – Appeal from decision of SSAT – second appeal of a decision – errors of law – remittal back to SSAT.
Karl & Larsons [2012] FMCAfam 27
FAMILY LAW – Parenting – with whom the child should live – serious allegations by each parent against the other – consideration of those matters arising pursuant to the provisions of sections 60B and 60CC(2) – balancing child’s right to a meaningful relationship with both parents and the need to ensure that the child is protected from physical or psychological harm – psychiatric evidence relating to the mother and her inability to foster a relationship with the father or to have any confidence in the father and his capacity to provide for the child – consideration of concerns with regard to alienation or manipulation of the child by the mother – consideration of rebuttal of the presumption of equal shared parental responsibility and of that being appropriate in all of the circumstances – the need to re-establish the relationship with the father without the possibility of interference thereto – orders with respect to a reversal of with whom the child is to live and a three month moratorium on time spent with the other parent.
Pickle & Pickle [2010] FMCAfam 1181
FAMILY LAW – Property – long marriage – family trust – contributions – financial resource.
Weiss & Cooper (No.2) [2011] FMCAfam 1521
FAMILY LAW – Property – costs.
Weiss & Cooper [2011] FMCAfam 1520
FAMILY LAW – Property – 30 year de facto relationship – substantial initial contribution – adjustment under section 75(2).
ADMINISTRATIVE LAW
DZACM v Minister for Immigration & Anor [2012] FMCA 198
PRACTICE & PROCEDURE – Orders – where proposed Short Minutes of Order provided that Respondent produce Applicant to appear in person in court at hearing and provision for movement of applicants – whether to grant order.
PRACTICE & PROCEDURE – Orders – where proposed Short Minutes of Order provided that Registrar provide interpreter for applicant – where applicant represented – where interpreter not generally provided by courts in civil matters – whether court should provide interpreter.
DZACO v Minister for Immigration & Anor [2012] FMCA 199
PRACTICE & PROCEDURE – Orders – where proposed Short Minutes of Order provided that Respondent produce Applicant to appear in person in court at hearing and provision for movement of applicants – whether to grant order.
PRACTICE & PROCEDURE – Orders – where proposed Short Minutes of Order provided that Registrar provide interpreter for applicant – where applicant represented – where interpreter not generally provided by courts in civil matters – whether court should provide interpreter.
7 March 2012
FAMILY LAW
Jordan & Verne (SSAT Appeal) [2012] FMCAfam 21
CHILD SUPPORT – Decision of Social Security Appeals Tribunal set aside.
Troy & Troy [2012] FMCAfam 118
FAMILY LAW – International relocation – urgent application – consideration of urgency – incomplete evidence – exercise of discretion – interim or final orders.
1 March 2012
FAMILY LAW
Jets & Maker (No.2) [2011] FMCAfam 1473
FAMILY LAW – Five year old child – where child has lived with mother for whole of his life – relevance and effect of status quo – quality of status quo – where mother alleges father has physically and sexually abused child – where mother has unilaterally stopped spend time arrangements on many occasions following such allegations – consideration of evidence in relation to allegations of physical and sexual abuse – where mother was not a credible witness and father was a credible witness – where evidence reveals mother is immature and lacking in insight – where mother is relentlessly critical of father – where mother is prone to exaggeration and "catastrophisation" – where father abused drugs and alcohol and mistreated mother early in relationship – where father has matured but mother has not – where expert evidence does not support a conclusion to the effect that child has been physically or sexually abused – where mother is a permissive and indulgent parent – where child behaves very differently with mother than with father – conclusion to the effect that father has not abused child – no unacceptable risk of abuse when child is with father but unacceptable risk of psychological or emotional abuse if child remains with mother – mother unwilling or unable to allow child to have a meaningful relationship with father – where only way to ensure child will have a meaningful relationship with both parents is to place child with father – where mother cannot be relied upon to facilitate or encourage relationship between child and father – decision to place child with father.
FAMILY LAW – Parental responsibility – where mother insists parties cannot communicate – where mother cannot believe that parties can ever communicate – where mother unilaterally enrols child in school notwithstanding pre-existing order for equal shared parental responsibility – order for sole parental responsibility made in father's favour.
Letham & Jones [2012] FMCAfam 1
FAMILY LAW – Property Settlement – where husband has failed to make full and frank disclosure of his share holdings in various entities – discussion of disallowance of debts and treatment of add backs generally – analysis of section 75(2) factors.
Oldfield & Anor & Oldfield & Anor [2012] FMCAfam 22
FAMILY LAW – Parenting – grandparents’ application for time to be spent with them – dispute between parents and grandparents – where parents consider children at risk in grandparents’ care – family report indicates loving attachment between children and grandparents – consideration of the principles established in Rice & Miller (1993) 16 FLR 970 – whether amendments to Part VII of the Family Law Act 1975 elevate parents above other applicants – consideration of the direction contained within section
43 of the Family Law Act 1975 – consideration of ongoing psychological effects upon children if relationship to continue – consideration of various order options – determination that no order is appropriate.
(See attached file: Oldfield & Anor & Oldfield & Anor [2012] FMCAfam22.rtf) IT IS NOTED that publication of this judgment under the pseudonym Oldfield & Anor & Oldfield & Anoris approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth)
Sykes & Agnes and Anor [2012] FMCAfam 121
FAMILY LAW – Children – maternal grandmother’s application for time with five year old child – applicant and her family display negative attitude towards the father – mother not a participant in proceedings – child not spending time with the mother – grandmother seeks initial supervised and then unsupervised time with child – balance of benefits and detriments to the child of time with regime.
MIGRATION
SZQOT v Minister for Immigration & Anor [2012] FMCA 84
MIGRATION – Review of report and recommendation of an Independent Merits Reviewer in respect of an offshore entry person – Applicant claiming psychological and physical harm in Iraq because of his marriage to a Thai woman – Reviewer treating the claim of psychological harm by enforced separation as merely a humanitarian concern – Reviewer applying a test of “severe harm” to the applicant’s claims – jurisdictional error established.
16 February 2012
FAMILY LAW
Borwick & Child Support Agency & Anor (SSAT Appeal) [2011] FMCAfam 1471
CHILD SUPPORT – Application for stay of collection – consideration of discretionary factors.
Dundas & Blake [2012] FMCAfam 103
FAMILY LAW – Parenting – child aged 2 years – complex care history – insecure attachments – competing residence applications – expert recommends child live primarily with Mother with no overnights with the Father for at least 18 months to repair child’s attachment to Mother unless finding against Mother of parental neglect – recommendations adopted.
Spencer & Davidson [2011] FMCAfam 529
FAMILY LAW – Parenting – relocation – mother in [B] – father on Gold Coast.
ADMINISTRATIVE LAW
Borwick v SSAT Principal Members & Ors (SSAT Appeal) [2011] FMCA 1039
ADMINISTRATIVE LAW – Child Support appeal – costs.
BANKRUPTCY
Henderson and Anor v National Australia Bank Ltd [2012] FMCA 14
BANKRUPTCY – Application to set aside Bankruptcy Notice – whether overstatement of amount due – whether sale proceeds paid before or after default judgment issued – whether sale proceeds not accounted for – whether Bankruptcy Notice invalid.
TIME – Judicial acts – judgment and order – whether related back to earliest moment of day on which made – where conflict between time of judicial act and time of non-judicial act – whether time of judicial act or non-judicial act prevails.
COPYRIGHT
Perez & Ors v Fernandez [2012] FMCA 2
COPYRIGHT – Infringement – moral rights – sound recording altered by the respondent and streamed on his website – substitution of words by the performer used in a different context – purpose and effect of substitution was to leverage off the reputation of the author and to mock him – award of damages for breach of the author’s right to integrity of authorship.
INDUSTRIAL LAW
Stevenson v Airservices Australia [2012] FMCA 55
INDUSTRIAL LAW – Adverse action – whether for a prohibited reason – whether decision-maker’s motivation affected by motives of persons providing him with the information used as the basis for his decision.
MIGRATION
SZRPA v Minister for Immigration & Anor [2012] FMCA 91
MIGRATION – Persecution – review of recommendation made by independent merits reviewer (“Reviewer”) that the applicant not be recognised as a person to whom Australia has protection obligations – allegations that the Reviewer denied the applicant procedural fairness and failed to consider a potential but unarticulated claim.
19 January 2012
FAMILY LAW
Brito & Jalaba [2011] FMCAfam 1065
FAMILY LAW – Parenting – travel to Israel – education – property.
Colfer & Colfer [2011] FMCAfam 1416
FAMILY LAW – Property – application for leave to institute proceedings out of time – hardship – discretion of the Court.
Dickson & Dickson [2011] FMCAfam 533
FAMILY LAW – Property.
Hardy & Markson [2011] FMCAfam 1061
FAMILY LAW – Property division – wife’s inheritance forms bulk of property pool – 9 year relationship – one child – husband’s financial and non-financial contributions not to be given token weight – husband and wife both stay at home to raise their daughter – asset by asset or global approach – wife seeks to assess contributions on two pools and quarantine her inheritance from s.79 property division – global approach adopted – s.79 gender neutral – change of schooling.
Harke & Edward [2011] FMCAfam 536
FAMILY LAW – Parenting – allegations of sexual abuse – unacceptable risk – equal shared parental responsibility.
Pelly & Nolan [2011] FMCAfam 530
FAMILY LAW – Children – equal shared parental responsibility – property – loan made by the parent of one of the parties.
INDUSTRIAL LAW
Birch v Wesco Electrics (1966) Pty Ltd [2012] FMCA 5
INDUSTRIAL LAW – Dismissal – alleged contravention of a general protection – adverse action – age – sex – injunction – whether in relation to dismissal – whether equal opportunity claim before state administrative decision-maker statutorily prohibited.
COURTS AND JUDGES – Federal Magistrates Court – federal court – state administrative decision-maker – restraint – injunction.
PRACTICE AND PROCEDURE – Injunction – federal court – whether personal prohibition on applicant making equal opportunity claim before state administrative decision-maker– restraint – applicant or state administrative decision-maker.
PRACTICE AND PROCEDURE – Abuse of process – whether vexatious proceedings in any other Australian Court.
WORDS AND PHRASES – “must” – “must not” – “must not make” – “in relation to” – “Australian Court”.
9 January 2012
FAMILY LAW
Urquhart & Urquhart & Anor (SSAT Appeal) [2011] FMCAfam 1453
CHILD SUPPORT – Remitted back to the Social Security Appeals Tribunal.
(See attached file: Urquhart & Urquhart & Anor (SSAT Appeal) [2011]
FMCAfam1453.rtf)
Wylie & Wylie [2011] FMCAfam 1344
FAMILY LAW – Parenting – previous consent orders – urgent application following almost immediate failure to comply with orders – allegations of sexual abuse and violence by the father – allegations of manipulative and alienating behaviours by the mother – consideration of argument as to admissibility of statements attributable to the mother being made to Department of Communities officers and communicated to police officers – finding of admissibility – consideration of the objects of the Act and principles and application of relevant considerations – consideration of whether the behaviour of one or other of the parties constitutes an “unacceptable risk” to the children – determination on an interim basis that a risk of psychological harm of an unacceptable nature does arise – orders accordingly.
21 December 2011
FAMILY LAW
Tan & Tan and Anor (SSAT Appeal) [2011] FMCAfam 913
CHILD SUPPORT – Appeal from SSAT – reconciliation of estimate of income with taxable income – whether the appellant had an arguable case – percentage of care.
INDUSTRIAL LAW
Fair Work Ombudsman v Pucci [2011] FMCA 997
INDUSTRIAL LAW – Admitted contraventions of ss.182, 235, of the Workplace Relations Act 1996 (Cth) and reg.19.20 of the Work Place Regulations 1996
(Cth) – whether pecuniary penalties should be awarded pursuant to s.719 of the Workplace Relations Act 1996 (Cth) – whether the pecuniary penalties agreed upon by the parties are appropriate – appropriate amount of pecuniary penalties.
MIGRATION
Singh v Minister for Immigration & Anor [2011] FMCA 982
MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – meaning of clause 485.216 of the Migration Regulations 1994 (Cth) in requiring that visa application be accompanied by evidence that applicant has applied for an Australian Federal Police check during the 12 months immediately before the day when the application is made.
SZQFY v Minister for Immigration & Anor [2011] FMCA 996
MIGRATION – Persecution – review of recommendation made by independent merits reviewer (“Reviewer”) that the applicant not be recognised as a person to whom Australia has protection obligations – allegation that the Reviewer denied the applicant procedural fairness by failing to put him on notice of matters material to the Reviewer’s decision and by failing to consider an integer of his claims – whether an applicant must adduce evidence of practical injustice before a finding of procedural unfairness will be made – extent of the Reviewer’s obligation to raise matters with an applicant – adverse information/ information relied on adversely.
(See attached file: SZQFY v Minister for Immigration & Anor [2011]
FMCA996.rtf)
SZQMR v Minister for Immigration & Anor [2011] FMCA 992
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in India on the basis of his wife’s sexual orientation – Tribunal finding that the applicant had a well-founded fear of harm for a Convention reason in his local area but that he could relocate within India to avoid that harm – no reviewable error found.
PRACTICE AND PROCEDURE – Observations on the undesirability of the Tribunal resorting to the relocation principle in preference to the harder task of rigorously testing and resolving claims for protection.
7 December 2011
BANKRUPTCY
Gwenian Pty Ltd v Webb [2011] FMCA 903
BANKRUPTCY – Registrar’s sequestration order made in absence of debtor – earlier petition outstanding in another State – refusal of reasonable application by earlier petitioner to adjourn and transfer later petition – whether relevant considerations were addressed by Registrar – application for review of sequestration order made on later petition – Registrar’s orders set aside – priority of first petition waived – no merit in grounds of opposition to petition – new sequestration order made on de novo hearing – some costs orders made against second petitioner.
FAMILY LAW
Frost & Frost and Anor (SSAT Appeal) [2011] FMCAfam 1311
CHILD SUPPORT – Appeal from decision of SSAT – error of law – jurisdictional error – factual issues concerning income, property and financial resources of liable parent – manner in which SSAT approached issue of taxation claim for depreciation and treated [F] deposit made by liable parent – questions of fact for the SSAT – no error of law established – appeal dismissed.
Jensen & Taylor [2011] FMCAfam 1251
FAMILY LAW – Whether de facto relationship – whether the parties had so merged their lives that they were, for all practical purposes “living together” as a couple on a genuine domestic basis – expectations that did not eventuate.
Rushton & Rushton [2011] FMCAfam 1259
FAMILY LAW – Property settlement – where the husband is a [occupation omitted] in a well-established [business] – valuation of interest in [business] – whether legal fees paid should be added back into the pool of property available for distribution at trial – discussion of add backs generally – analysis of section 75(2) factors – structure of orders to be made – whether section 79(2) is a fourth substantive step in property settlement exercise – consideration of what might constitute a just and equitable "mix" of asset types for each party.
Scofield & Shaw [2011] FMCAfam 1296
FAMILY LAW – De facto property settlement – consideration of the legal and equitable interests of the parties in their jointly owned home – discussion as to the principles involved in the taking of accounts in a partition suit – consideration as to whether the parties’ legal and equitable interests should be altered and the extent of any alteration.
INDUSTRIAL LAW
Fair Work Ombudsman v Quincolli Pty Ltd & Anor [2011] FMCA 139
INDUSTRIAL LAW – Alleged breaches of the Workplace Relations Act 1996 (Cth) and the Fair Work Act 2009 (Cth) and a State award – issues of liability – whether the employees were covered by the State award and whether the employer had lodged Australian Workplace Agreements for them considered – allegations of a politically motivated investigation by Fair Work Australia – allegations of a flawed investigation by Fair Work Australia – relevance of the allegations considered.
PRACTICE AND PROCEDURE – Jurisdiction of the Court.
MIGRATION
SZQHH v Minister for Immigration & Anor [2011] FMCA 740
MIGRATION – Review of Independent Merits Reviewer decision in respect of an offshore entry person – applicant claiming ethnic and religious persecution in Afghanistan – applicant’s fear found to be not well-founded – whether the review was procedurally unfair considered – Reviewer failing to disclose certain country information – reasons for decision following a template in part – whether an apprehension of bias considered.
29 November 2011
BANKRUPTCY
Anderson v Sizer [2011] FMCA 895
BANKRUPTCY – Application for substituted petitioning creditor.
BANKRUPTCY – Application for review of decision of Registrar – application out of time – whether extension of time ought to be granted – factors relevant to extension of time.
BANKRUPTCY – Application to annul bankruptcy – whether sequestration order ought to have been made – whether discretion to annul bankruptcy ought to be exercised.
FAMILY LAW
Gould & Christie [2011] FMCAfam 1230
FAMILY LAW – Property – date of separation – contributions – asset-by-asset or global approach – section 75(2) factors.
Thompson & Dean and Anor [2011] FMCAfam 1074
FAMILY LAW – Aboriginality – significant domestic violence – section 68B injunctions – undefended hearing.
MIGRATION
SZQKE v Minister for Immigration & Anor (No.3) [2011] FMCA 878
MIGRATION – Review of Independent Merits Review decision in respect of an offshore entry person – applicant claiming persecution in Afghanistan on the basis of his ethnicity and religion – Tribunal finding that the applicant did not have a well-founded fear of persecution in his home province – consideration of whether the Reviewer erred in determining that the applicant would not face persecution in travelling to his home province.
21 November 2011
BANKRUPTCY
Bank of Western Australia v Henderson (No.3) [2011] FMCA 840
BANKRUPTCY – Creditor’s petition – cross-border insolvency – where Respondent debtor subject to insolvency administration in New Zealand – where New Zealand Official Assignee may bring action in Australia under Bankruptcy Act 1966 (Cth) s.29 or Cross-Border Insolvency Act 2008 (Cth) – where no action for recognition of foreign judgment – whether Cross-Border Insolvency Act 2008 prevents making of sequestration order – requirements of cooperation – effect of unrecognised foreign judgments – whether to appoint a Trustee in Australia.
Conlan as Trustee of two Bankrupt Estates [2011] FMCA 849
COURTS AND JUDGES – Validity of Federal Magistrates Act 1999 (Cth) – validity of establishment of Federal Magistrates Court – validity of commissions of appointment of federal magistrates – whether federal magistrates exercise judicial power of the Commonwealth.
CONSTITUTIONAL LAW – Validity of Federal Magistrates Act 1999 (Cth) – validity of establishment of Federal Magistrates Court – validity of commissions of appointment of federal magistrates – whether federal magistrates exercise judicial power of the Commonwealth – whether
constitutional issue arises – whether notices under s.78B of the Judiciary Act 1903 (Cth) should issue.
PRACTICE AND PROCEDURE – Transfer of proceedings to the Federal Court – factors to be considered – whether in the interests of the administration of justice.
CONSUMER LAW
Fortron Automotive Treatments Pty Ltd v Jones & Ors (No.4) [2011] FMCA 854
TRADE PRACTICES – Alleged misleading and deceptive conduct – alleged product substitution scheme.
COURTS AND JUDGES – Validity of Federal Magistrates Act 1999 (Cth) – validity of establishment of Federal Magistrates Court – validity of commissions of appointment of federal magistrates – whether federal magistrates exercise judicial power of the Commonwealth.
CONSTITUTIONAL LAW – Validity of Federal Magistrates Act 1999 (Cth) – validity of establishment of Federal Magistrates Court – validity of commissions of appointment of federal magistrates – whether federal magistrates exercise judicial power of the Commonwealth – whether constitutional issue arises – whether notices under s.78B of the Judiciary Act 1903 (Cth) should issue.
FAMILY LAW
Barnett & Child Support Registrar (SSAT Appeal) [2011] FMCAfam 1224
CHILD SUPPORT – Appeal from SSAT – no question of law raised – appeal dismissed.
(See attached file: Barnett & Child Support Registrar (SSAT Appeal) [2011]
Cazet & Faulkner & Anor (SSAT Appeal) [2011] FMCAfam 1157
CHILD SUPPORT – Appeal from decision of SSAT – question of law – whether finding of fact made in the absence of any evidence.
Essex & Essex (SSAT Appeal) [2011] FMCAfam 688
CHILD SUPPORT – SSAT APPEAL – Appeal from decision of SSAT – Tribunal found to have properly considered the relevant period for the departure application – otherwise appeal found not to be an appeal on a question of law– appeal dismissed.
Gaffney & Erikson and Anor [2011] FMCAfam 1177
FAMILY LAW – Parenting proceedings – applicant maternal grandfather – summary dismissal – no reasonable prospects of success – vexatious proceedings.
Kelly & Marlowe & Anor (SSAT Appeal) [2011] FMCAfam 1162
CHILD SUPPORT – Appeal from SSAT – interpretation of orders – use of extrinsic evidence – phrase “for the foreseeable future”.
Manchester & Manchester and Ors (SSAT Appeal) [2011] FMCAfam 1215
CHILD SUPPORT – SSAT Appeal – decision of SSAT Principal Member to remove party to SSAT proceedings – decision of delegate of SSAT Principal Member to dismiss SSAT proceedings – whether right of appeal against each decision – whether each decision a “decision of the SSAT”.
Scott & Child Support Registrar and Anor (SSAT Appeal) [2011] FMCAfam 1212
CHILD SUPPORT – Appeal from decision of SSAT – consideration of grounds of appeal – whether error of law shown – appeal dismissed.
MIGRATION
MZYLH v Minister for Immigration & Anor [2011] FMCA 888
MIGRATION – Review of decision of Refugee Review Tribunal – Applicant seeking a declaration Tribunal’s decision unlawful or valid – Applicant a Pakistani national – reasonableness of relocation in all the circumstances – reasoning of Tribunal – writ of certiorari issue – writ of mandamus issue – application remitted to Refugee Review Tribunal.
SZQKE v Minister for Immigration & Anor [2011] FMCA 846
PRACTICE AND PROCEDURE – Publicity concerning litigation between Federal Magistrates and the Commonwealth – consideration of whether the Court should continue to deal with litigation involving the Commonwealth or its officers.
31 October 2011
INDUSTRIAL LAW
Australian Municipal, Administrative, Clerical and Services Union v Shire of Mundaring & Anor (No 2) [2011] FMCA 751
CONSTITUTIONAL LAW – Implied guarantee of freedom of political
communication – local government election – whether matter arising under the Constitution.
INDUSTRIAL LAW – General protections – threat of adverse action – members of industrial association distributing flyer and commenting or canvassing generally concerning local government election.
LOCAL GOVERNMENT – Election – distribution of flyer by members of industrial association – commenting or canvassing generally by members of industrial association – whether conduct lawful or unlawful.
PRACTICE AND PROCEDURE – Whether matter arising under the Constitution – whether proceedings to be adjourned pending issuance of Judiciary Act notices.
Australian Municipal, Administrative, Clerical and Services Union v Shire of Mundaring & Anor [2011] FMCA 731
INDUSTRIAL LAW – Employees eligible for membership of industrial association – ongoing negotiations for new enterprise agreement between industrial association and local government employer – letterbox drop of flyer by employees – flyer detailing negotiations and parties’ positions concerning enterprise agreement negotiations – flyer advocating vote for certain persons in forthcoming local government elections – direction to employees to cease letterbox drop and desist from disseminating information – conduct of employees alleged to breach Code of Conduct – unspecified appropriate action to be taken if direction not complied with – whether unspecified appropriate action is adverse action.
LOCAL GOVERNMENT – Employment – provisions of Code of Conduct – whether provisions of Code of Conduct prevent employees from electioneering in local government elections in relation to enterprise agreement negotiations between industrial association and local government – whether action or threat of action against employees arising from breach of Code of Conduct constitutes adverse action.
LOCAL GOVERNMENT – Employment – Code of Conduct – whether to be observed – whether enforceable if breach by employees.
LOCAL GOVERNMENT – Elections – whether flyer distributed in contravention of provisions requiring statement of name of printer – whether distribution of flyer unlawful activity.
PRACTICE AND PROCEDURE – Interim injunction – principles to be applied.
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing And Allied Services Union of Australia v CJ Manfield Pty Ltd (No 2) [2011] FMCA 724
INDUSTRIAL LAW – Penalties – agreement between applicant and respondent on amount of penalty – whether within permissible range – factors to be considered.
Construction Forestry Mining And Energy Union v Mammoet Australia Pty Ltd [2011] FMCA 802
INDUSTRIAL LAW – Alleged breach of collective agreement – failure to provide accommodation – whether obligation to provide accommodation.
INDUSTRIAL LAW – Alleged contravention of general protection – adverse action – protected industrial action – withdrawal of accommodation – whether withdrawal of accommodation authorised under the Fair Work Act 2009 (Cth) – whether payment in relation to industrial action.
PRACTICE AND PROCEDURE – No case to answer submission – whether election required – factors for consideration.
WORDS AND PHRASES – “payment” – “earnings” – “remuneration” – “in relation to”.
MIGRATION
MZYNV v Minister for Immigration & Anor [2011] FMCA 790
MIGRATION – Offshore entry person – judicial review of Independent Merits Review Assessment – extension of time to lodge application – whether extension necessary in the interests of the administration of justice – whether denial of natural justice.
WORDS & PHRASES – “Interests of the administration of justice” – meaning defined.
SZQCO v Minister for Immigration & Anor [2011] FMCA 613
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Nepal – Tribunal finding that the applicant’s fear was not well-founded – applicant represented by a migration agent who was unable to attend the Tribunal hearing because of an injury – Tribunal rejected the agent’s request for a later hearing date but undertook to decide at the hearing whether further submissions were required and, if so, time for submissions would be given – applicant’s agent requesting an opportunity to make further submissions the day after the Tribunal hearing – Tribunal making its decision the same day – whether the Tribunal breached s.425 of the Migration Act 1958 (Cth) considered.
30 October 2011
FAMILY LAW
Dessen & Dessen (SSAT Appeal) [2011] FMCAfam 1109
CHILD SUPPORT – Appeal from decision of SSAT – consideration of whether one or more errors of law established – consideration of basis upon which SSAT reached determination – findings open on the evidence presented – no error of law established – appeal dismissed.
Fante & Joyce [2011] FMCAfam 1114
FAMILY LAW – Practice and procedure – consideration of adjustment pursuant to the ‘slip rule’ to orders previously made – consideration of relevant principles - effect of passing of time – withdrawal of one party’s consent to such an order – application of slip rule not appropriate.
FAMILY LAW – Parenting – injunctions sought to prevent father from having five year old child further interviewed/examined – injunctions sought to prevent father from questioning school teachers and carers about what he considers abuse – application during hearing to vary existing orders and seek further family reports – cross application to injunct mother from making further applications – consideration of psychiatric assessments and recommendations – consideration of further harm to child – injunctions to prevent further enquiry and investigation in best interests of the child.
Lawrence & Tan [2011] FMCAfam 1152
FAMILY LAW – Children – section 118 – leave to institute proceedings – no change in circumstance – application dismissed.
Miller & Trent [2011] FMCAfam 324
FAMILY LAW – Property – De facto claim – time – declaration – words substantial contributions – serious injustice considered.
Podmore & Pillai (SSAT Appeal) [2011] FMCAfam 952
CHILD SUPPORT – Appeal from decision of SSAT – error of law – jurisdictional error – factual issue concerning income, property and financial resources of liable parent – question of fact for the SSAT – no error of law established – appeal dismissed.
Sanchez & Taylor (SSAT Appeal) [2011] FMCAfam 1142
CHILD SUPPORT – Appeal on a question of law from SSAT – appeal is against decision not reasons – decision correct – appeal dismissed.
Waite & Fairbank [2011] FMCAfam 824
FAMILY LAW – Contravention – sentencing – 19 breaches of parenting orders – Mother acted in serious disregard of orders – deliberate – wilful – mother shows no respect for relationship between Father and children – suspended jail sentence.
28 September 2011
FAMILY LAW
Curran & Roper [2011] FMCAfam 859
CHILD SUPPORT – Whether child support agreement “limited” or “binding” – whether “exceptional circumstances” – whether “significant change in circumstances” – “exceptional circumstances” defined.
Hadzic & Hadzic [2011] FMCAfam 974
FAMILY LAW – Parenting – separated siblings – evidence of expert witness –duties of expert witnesses – consideration of expert evidence where expert changes recommendations – best interests considerations.
Maguire & Sheldon [2011] FMCAfam 919
FAMILY LAW – Parenting orders – substantial issue is whether the children are or would be exposed to an unacceptable risk of harm if exposed to their father – allegations of family violence and sexual abuse – credibility of evidence.
McCormack & McCormack & Anor (SSAT Appeal) [2011] FMCAfam 963
CHILD SUPPORT – SSAT APPEAL – Validity of decision to remove appellant as party to proceedings – denial of procedural fairness – appeal upheld.
Mills & Mills (SSAT Appeal) [2011] FMCAfam 181
CHILD SUPPORT – Appeal from decision of SSAT – error of law – interpretation of consent order regarding discharge of arrears of child support – whether order ambiguous – reference by Tribunal to external sources of evidence to interpret order – whether evidence referenced by Tribunal was legally admissible – no error found – appeal dismissed.
Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959
CHILD SUPPORT – SSAT APPEAL – Child undertaking apprenticeship and not living with either parent – meaning of “care of the child” – appeal allowed.
Richards & Scott & Anor [2011] FMCAfam 861
FAMILY LAW – Dispute between extended family – criticisms and allegations of neglect and untidiness – objection to and setting aside of subpoena material – notice of objection not filed in proceedings.
Ridley & Whittle & Anor [2011] FMCAfam 985
FAMILY LAW – Parenting orders – seven year old child – application by maternal step-grandmother – grandmother has been primary carer – mother did not participate in proceedings – issues of father’s capacity – religious differences between the parties.
Stiller & Power [2011] FMCAfam 996
FAMILY LAW – Property – both parties 74 years of age, marrying in 1991 – issue of whether parties actually lived as Husband and Wife – Wife made the overwhelmingly greater financial contribution – whether to assess contributions on an “asset by asset” basis or a “global” basis – loan of $84,000 by the Wife to the Husband – Wife restrained from recovering debt – justice and equity done by each party retaining all real property in their possession, power or control.
14 September 2011
CONSUMER LAW
Matheson v Findex Australia Pty Ltd [2011] FMCA 135
COURTS AND JUDGES – Federal Magistrates Court – jurisdiction – accrued jurisdiction – substituted applicant – federal claim abandoned in amended statement of claim – objection to jurisdiction – where no remaining claim in federal jurisdiction – whether remaining claim in accrued jurisdiction.
COMPETITION AND CONSUMER LAW – Alleged misleading and deceptive conduct – sale and purchase of financial planning business.
CONTRACT – Alleged breach of asset sale deed – sale and purchase of financial planning business.
HUMAN RIGHTS
Sluggett v Commonwealth of Australia [2011] FMCA 609
HUMAN RIGHTS – Discrimination law – disability discrimination – discrimination in employment – direct discrimination – indirect discrimination – harassment – applicant suffers from post polio syndrome – applicant employed as a permanent Commonwealth public servant – was applicant treated less favourably because of her disability – analysis of complainant’s behaviour in the workplace – comparison between disabled complainant and person without such disability but who displays same behavioural characteristics – requirement to comply with a condition – reasonableness – costs.
INDUSTRIAL LAW
Fair Work Ombudsman v Drivecam Pty Ltd & Ors [2011] FMCA 600
INDUSTRIAL LAW – Admitted contraventions of ss.45, 351 and 536 of the Fair Work Act 2009 (Cth) – whether pecuniary penalties should be awarded pursuant to s.546 of the Fair Work Act 2009 (Cth) – whether the pecuniary penalties agreed upon by the parties were within the permissible range – whether the pecuniary penalties agreed upon by the parties were manifestly excessive – whether the pecuniary penalties should be paid to the applicant pursuant to s.546(3) of the Fair Work Act 2009 (Cth) – whether declarations of contraventions should be made by the Court – whether the Court should order that the first respondent pay compensation for economic loss to the employee over and above the underpayment – whether the Court should order that the first respondent give a written apology to the employee.
MIGRATION
Al-Momani v Minister for Immigration & Anor [2011] FMCA 453
MIGRATION – Review of Migration Review Tribunal decision – refusal of a partner residence visa – issue of family violence referred to independent expert, who found the applicant was not a victim of family violence although the relationship was characterised by mutual violence – whether the Tribunal was bound to accept the opinion of the expert and whether the Tribunal should have found that the expert arrived at her opinion unlawfully considered – applicant invited to comment on adverse information in the report of the expert – whether the applicant’s response should have been referred to the expert for reconsideration considered.
LAW REFORM – Observations on the desirability of a definition of family violence in the Migration Regulations that is consistent with that proposed in the Family Law Legislation Amendment (Family Violence and Other
Measures) Bill 2011.
WORDS AND PHRASES – “Family violence”.
FAMILY LAW
Rosier & Bell and Anor (SSAT Appeal) [2009] FMCAfam 801
CHILD SUPPORT – SSAT Appeal – objection by payee to particulars of child support assessment which allow a multi-case deduction for other children of payer – payee alleges payer not a parent of two of the other children – legislative requirements met for Child Support Registrar to be satisfied payer is a parent of the other children – no error of law – appeal dismissed.
Nettle & Nettle [2011] FMCAfam 414
FAMILY LAW – Practice and Procedure – procedural – application by the wife that the husband’s solicitor be restrained from acting for the husband – application granted.
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