Significant and New Judgments
Note: to view the full text of a judgments click its citation and a MS Word version of the judgment will be displayed.
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.
18 August 2011
ADMINISTRATIVE LAW
Cawood v Refund Group Pty Ltd & Anor [2011] FMCA 558
PRACTICE & PROCEDURE – Application for orders by consent to “suppress” court file – source of power – considerations – application refused.
Cawood v Refund Group Pty Ltd [2011] FMCA 558
PRACTICE & PROCEDURE – Application for orders by consent to “suppress” court file – source of power – considerations – application refused.
Martinez v Morris & Anor [2011] FMCA 478
COSTS – Dismissal of a creditor’s petition on review of a sequestration order – competing claims for costs by the petitioning creditor, the debtor and the trustee in bankruptcy – petitioning creditor a firm of solicitors – debtor a third party payer – solicitors failing to meet the requirements of the Legal Profession Act 2004 (NSW) in relation to costs – costs orders against the solicitors.
BANKRUPTCY
Barlaw Pty Ltd v Crouch [2011] FMCA 384
BANKRUPTCY – Application to remove trustee for misconduct – consideration of the conduct of the trustee – acceptance of resignation of the trustee.
DJ Sweeney Holdings Pty Ltd v McLeod [2011] FMCA 608
BANKRUPTCY – Bankruptcy notice – whether bankruptcy notice can be issued by separate creditors for separate debts against the one debtor.
RMG Acquisitions No 8 Pty Ltd v Collard [2011] FMCA 596
BANKRUPTCY – Whether requirement for the words “in liquidation” to appear in description of creditor in Bankruptcy Notice – whether Bankruptcy Notice is a “public document” for the purposes of s.541 of the Corporations Act 2001 (Cth) – whether Receiver can initiate bankruptcy proceedings on behalf of a creditor whilst creditor is in liquidation – whether Court should issue a sequestration order.
CONSUMER LAW
Matheson v Findex Australia Pty Ltd [2011] FMCA 135
COURTS AND JUDGES – Federal Magistrates Court – jurisdiction – associated 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 associated
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.
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 are appropriate – appropriate amount of pecuniary penalties – 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
Brar v Minister for Immigration & Anor [2011] FMCA 435
MIGRATION – Review of Migration Review Tribunal decision – cancellation of a sponsored work visa – applicant allegedly supplying a bogus document in support of his visa application – notice of possible cancellation of the visa incorrectly asserting that the applicant had provided the bogus document to an officer of the Department when in fact it had been provided online – Tribunal inviting comment on information that was in reality a supposition or inference based upon other information – jurisdictional error established.
Liu v Minister for Immigration & Anor [2011] FMCA 601
MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether an independent expert applied an incorrect standard in not being able to establish conclusively if the applicant had been the subject of relevant domestic violence – whether the Migration Review Tribunal committed jurisdictional error by accepting the independent expert’s opinion – writs issued.
SZOVP v Minister for Immigration & Anor (No.2) [2011] FMCA 442
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China based upon a dispute between her husband and local officials – Tribunal finding no Convention nexus with the harm experienced and feared by the applicant – whether the Tribunal overlooked an element or integer of the applicant’s claims based upon her family background considered – applicant suffering from schizophrenia – whether her mental disability prevented her from participating in the Tribunal hearing considered – applicant’s migration agent failing to attend either of the two hearings conducted by the Tribunal – whether the agent’s conduct subverted the review process considered.
LAW REFORM – Observations on the desirability of protection visa applicants being assisted by a migration agent who is a legal practitioner and also on the desirability of the Migration Act 1958 (Cth) regulating uniformly the representation of applicants before the review tribunals.
SZQEL v Minister for Immigration & Anor (No.2) [2011] FMCA 582
MIGRATION – Review of decision by Independent Merits Reviewer – persecution – applicant who is a Hazara Shia from Afghanistan – reasons of race or religion – Migration Act 1958 (Cth) s.91R – procedural fairness – where applicant claimed letter in support of his claim not taken into account or dismissed by Reviewer – whether letters in fact taken into account – where genuineness of documents implicitly accepted – whether adverse credibility finding need be made – hearsay – bias – whether a finding that persons of a particular ethnicity or religion generically do not face persecution for a Convention reason has the effect of ruling out the significance of such attributes to “the essential and significant” reason for the applicant’s fear of persecution pursuant to s.91R(1)(a) – merits review – whether use of a template for coming to conclusions about the generic claims by Hazara Shias by Reviewer constitutes bias – whether the use of such a template constitutes failure to give proper, genuine and real consideration of applicant’s claims – where templates relate to findings derived from independent country information – whether template was not the original formulation of Reviewer’s views – inferences.
FAMILY LAW
Abdoo & Essey [2011] FMCAfam 772
FAMILY LAW – Application seeking to travel outside of Australia with child to Lebanon– previous consent orders placing child on the airport watch list – travel advice warnings against travel to Lebanon – question of serious predictable risk of physical or psychological harm to child should travel occur.
Foster & Child Support Registrar (SSAT Appeal) [2011] FMCAfam 808
CHILD SUPPORT – Appeal from decision of SSAT – reconciliation after income estimate election – “real remaining period taxable income” – meaning – method of determination.
Harrold & Harrold & Anor (SSAT Appeal) [2011] FMCAfam 779
CHILD SUPPORT – Appeal from SSAT – method of calculation of personal expenses paid by company on behalf of appellant – calculation of extent of income earned as cash in hand – no error of law established.
Morgan & Marsh and Anor (SSAT Appeal) [2011] FMCAfam 768
CHILD SUPPORT – Appeal regarding child support – leave to appeal – application for leave to appeal out of time – delay – no explanation for delay – no question of law raised in Notice of Appeal.
Nowland & Oxley [2010] FMCAfam 1492
FAMILY LAW – Property applications – application made out of time – Nigerian customary and traditional marriage – validity of marriage.
Parkin & Sykes (SSAT Appeal) [2011] FMCAfam 839
CHILD SUPPORT – Appeal from decision of SSAT on question of law – whether facts found by SSAT unsupported by any evidence – whether applicant denied procedural fairness – whether SSAT demonstrated bias against the applicant.
Starkey & Starkey [2011] FMCAfam 738
FAMILY LAW – Final parenting orders – previous consent orders entered into – breakdown of communication – supervised contact – apprehended domestic violence proceedings and final order – damage and violence toward property – allegations of mental health issues alleged to be residual symptoms of a brain injury – past diagnosis of depression.
Vaughn & Douglas [2011] FMCAfam 773
FAMILY LAW – Father restrained from contacting the mother or child – serious acts of violence and abuse – order for sole parental responsibility – violence and abuse precipitated by regular drug use.
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