Significant and New Judgments
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29 January 2010
ADMINISTRATIVE LAW
Maddison v Qualtime Association Inc [2010] FMCA 25
PRACTICE AND PROCEDURE – Discontinuance – Jurisdiction to permit setting aside of Notice of Discontinuance.
PRACTICE AND PROCEDURE – Discontinuance – Discretion to permit Notices of Discontinuance to be set aside.
PRACTICE AND PROCEDURE – Jurisdiction of the court – whether Federal Magistrates Court has inherent or incidental jurisdiction.
FAMILY LAW
Eltham & York [2009] FMCAfam 1077
FAMILY LAW – Property – marriage of approximately median duration – parties married in Argentina but lived in Australia.
Lahman & Cain [2010] FMCAfam 44
FAMILY LAW – Relocation – capacity to parent.
MIGRATION
Minister for Immigration v Wainwright & Anor [2010] FMCA 29
MIGRATION – Business visa – requirement to satisfy Public Interest Consideration 4006A – whether visa applicant could be ‘proposed employer’ – Tribunal decision set aside.
Morgun v Minister for Immigration [2009] FMCA 1306
MIGRATION – Application to challenge decision of Minister’s delegate to cancel visa whilst applicant in immigration clearance – whether delegate committed jurisdictional error – whether delegate obliged to state reasons for decision – whether applicant entitled to interpreter – whether adequate interpretation provided – whether applicant breached condition 8107 – meaning of “inconsistent”.
TRADE PRACTICES
O'Connor & Cowley Concepts Pty Ltd v Moller Og Compnay & Ors (No.3) [2009] FMCA 1308
PRACTICE AND PROCEDURE – Stay of proceedings – trade mark infringement proceedings in court and opposition proceedings before Registrar of Trade Marks – consideration of relevant factors – stay refused.
25 January 2010
MIGRATION
SZMWQ v Minister for Immigration & Anor [2009] FMCA 1197
MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – s.36(3) of the Migration Act 1958 read with
s.36(4) and (5) is the statutory embodiment, with some alteration, of the concept of effective protection – s.36(3) is not concerned with a person’s standard of living or length of residence in the third country where effective protection is available.
WORDS AND PHRASES – Meaning of “reside” where used in s.36(3) of the Migration Act 1958.
SZNTE v Minister for Immigration & Anor [2009] FMCA 1256
MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – no jurisdictional error demonstrated by the fact that the Tribunal used evidence from one review in determining another review – s.424A of the Migration Act 1958 applies to such information – applicant before Tribunal has no general right to call, hear or cross-examine persons whose evidence may be used by the Tribunal – no
s.424A(1) obligations attach to information supplied in response to a s.424A notice – the Tribunal has no obligation to send a second s.424A notice in the event that an applicant’s response to a s.424A notice is inadequate or incomplete.
22 December 2009
FAMILY LAW
Earle & Lampman (SSAT Appeal) [2009] FMCAfam 1080
CHILD SUPPORT – Appeal from decision of SSAT – decision of Child Support registrar to amend assessment for the relevant child support period – Interpretation of Court order – whether the order was a departure order – whether the Registrar was estopped from amending the Assessment.
MIGRATION
MZYEG v Minister for Immigration & Anor [2009] FMCA 1249
MIGRATION – Refugee Review Tribunal – whether Tribunal implicitly made a finding that the applicant was a national of PNG – whether Tribunal implicitly made a finding that the applicant was stateless – no implicit finding – jurisdictional error established.
16 December 2009
BANKRUPTCY
Board of Professional Engineers v Cowper [2009] FMCA 1194
BANKRUPTCY – Entitlement to issue Bankruptcy Notice – whether a fine and ancillary costs order constitutes a final order – whether the applicant is a creditor entitled to execute the final order.
FAMILY LAW
Parker & Jacks (No.3) [2009] FMCAfam 993
FAMILY LAW – Costs – relevant considerations – non disclosure in financial proceedings –indemnity costs sought – costs sought against solicitor and wife – conduct of solicitor.
Voss & Child Support Registrar & Anor (SSAT Appeal) [2009] FMCAfam 1296
FAMILY LAW – Appeal from SSAT – departure application – necessary commitments – high costs of contact – income and earning capacity.
INDUSTRIAL LAW
AMACSU v Brimbank City Council & Anor [2009] FMCA 1213
INDUSTRIAL LAW – Discovery – not allowed unless declared to be appropriate in the interests of the administration of justice.
MIGRATION
BRGAN of 2008 v Minister for Immigration & Anor [2009] FMCA 1200
MIGRATION – Persecution – review of Refugee Review Tribunal decision – protection visa – refusal – corroborative evidence – evidence considered as a whole, not sequentially – “poisoned well” approach not taken by the Tribunal – on remittal, failure by the Tribunal to state or expressly discuss the basis for the remittal does not amount to jurisdictional error.
He v Minister for Immigration & Anor [2009] FMCA 1142
MIGRATION – Review of decision by Migration Review Tribunal – application of policy by Tribunal members – policy to be considered only when lawful – voluntariness to be considered in determining a ‘reasonable period’ – irreparable severability a relevant consideration – jurisdictional error – application allowed.
SZMWQ v Minister for Immigration & Anor [2009] FMCA 1197
MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – s.36(3) of the Migration Act 1958 read with
s.36(4) and (5) is the statutory embodiment, with some alteration, of the concept of effective protection – s.36(3) is not concerned with a person’s standard of living or length of residence in the third country where effective protection is available.
WORDS AND PHRASES – Meaning of “reside” where used in s.36(3) of the Migration Act 1958.
SZNQJ v Minister for Immigration & Anor [2009] FMCA 1246
MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – applicant’s refusal to be conscripted – whether based on conscientious objection to law of general application – necessary findings of fact when objection to conscription alleged – Tribunal’s consideration of totality of the claims put forward – consideration of claims on a cumulative basis – Tribunal stated it had considered claims cumulatively.
30 November 2009
FAMILY LAW
Dolci & Dolci [2009] FMCAfam 1247
FAMILY LAW – Property – wife consenting against legal advice – court satisfied to accept consent – just and equitable.
Marsh & Marsh [2009] FMCAfam 1160
FAMILY LAW – Costs – applications for costs certificates under s.10 of the Federal Proceedings (Costs) Act 1981– hearing had not commenced in a real and litigious sense.
McCormack & McCormack & Anor and Peakes & Peakes & Anor [2009] FMCAfam 1250
FAMILY LAW – Matrimonial cause – application for approval of consent orders that wife purchase husband’s interest in matrimonial home form husband’s trustee in bankruptcy – no intention of the husband and wife to separate – refusal to make orders sought.
INDUSTRIAL LAW
Workplace Ombudsman v SRS Investments (WA) Pty Ltd & Anor [2009] FMCA 1132
INDUSTRIAL LAW – Civil penalty proceedings – records relating to employees – alleged contravention of requirement to produce records for inspection – whether request made of correct entity – nature of a trust – trustee’s obligations – effect of withdrawal of penalty infringement notice – whether first time contravener – penalty – factors for consideration.
PRACTICE AND PROCEDURE – Admission – whether admission can be withdrawn – factors for consideration.
TRUSTS – Nature of a trust – trustee’s obligations.
MIGRATION
Gamage v Minister for Immigration & Ors [2009] FMCA 1145
MIGRATION – Application for judicial review – student visa application – interim injunction to prevent deportation.
LEGAL PRACTITIONERS – Representation – struck off legal practitioner seeking to appear either as a McKenzie friend or a friend of the Court – struck off for misappropriation of funds in migration deportation matter.
SZNPG v Minister for Immigration & Anor [2009] FMCA 1033
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in India – applicant not believed – Tribunal not giving weight to documents submitted after the Tribunal hearing – Tribunal forming a concluded view before the documents were submitted –jurisdictional error found.
20 November 2009
FAMILY LAW
Aaron & Aaron [2009] FMCAfam 1192
FAMILY LAW – Parenting – interim hearing – de facto same-sex couple – significant dispute as to facts – minimal change to care arrangements– best interests of children.
Lefroy & Lefroy (SSAT Appeal) [2009] FMCAfam 1043
CHILD SUPPORT – Appeal from decision of SSAT – election in relation to income for Child Support year – decision of Child Support registrar to discharge the election.
Moreau & Trejo [2009] FMCAfam 1184
FAMILY LAW – Parenting – interim relocation application – documentary evidence of acquiescence.
PROCEDURAL – Request to attend by electronic communication – request denied and notification given by registry.
(See attached file: Moreau & Trejo [2009] FMCAfam1184.rtf) IT IS NOTED that publication of this judgment under the pseudonym Moreau & Trejo is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
Palmer & Palmer [2009] FMCAfam 987
FAMILY LAW – Property – 37 years cohabitation – 12 years since final separation.
(See attached file: Palmer & Palmer [2009] FMCAfam987.rtf) IT IS NOTED that publication of this judgment under the pseudonym Palmer & Palmer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
INDUSTRIAL LAW
Radisich v Molina & Ors [2009] FMCA 1121
EVIDENCE – Witness – application to cross-examine own witness under s.38 of the Evidence Act 1995 (Cth) – purpose of s.38 – evidence unfavourable to the party calling the witness – meaning of “unfavourable” – whether evidence neutral or inconsistent – discretionary considerations under
ss.38(6) and 192(2) of the Evidence Act 1995 (Cth).
INDUSTRIAL LAW – Civil penalty proceedings.
WORDS AND PHRASES – “unfavourable”.
MIGRATION
SZNSP v Minister for Immigration & Anor [2009] FMCA 1143
MIGRATION – Review of decision of RRT – whether Tribunal can give no weight to corroborative material where it has not, objectively, concluded that the applicant’s evidence was ‘poisoned beyond redemption’.
18 November 2009
MIGRATION
Lai v Minister for Immigration & Anor [2009] FMCA 1064
MIGRATION – Application by non-resident child to live with father in Australia – whether course of study would lead to a trade qualification equivalent to an Australian TAFE Certificate – meaning of “genuine consideration”.
WZANW v Minister for Immigration & Anor [2009] FMCA 1075
MIGRATION – Protection visa application – application for extension of time to file application.
MIGRATION – Protection visa application – whether right to remain in safe third country – whether any present right.
MIGRATION – Protection visa application – alleged bias on part of Tribunal – test for actual bias and reasonable apprehension of bias.
PRACTICE AND PROCEDURE – Application for extension of time to file application for judicial review of Tribunal decision on protection visa application – factors for consideration in extension of time application – whether in the interests of the administration of justice.
WORDS AND PHRASES – “interests of the administration of justice – “journalist”.
9 November 2009
BANKRUPTCY
Tzvetkoff v Kolyma Corporation AVV [2009] FMCA 1085
BANKRUPTCY – Application to set aside bankruptcy notice – requirement to state amount of judgment – whether failure to specify currency denomination a formal defect – whether inclusion of note 3 was a matter made essential by the Act.
FAMILY LAW
Farley & Haley & Child Support Registrar (SSAT Appeal) [2009] FMCAfam 1151
CHILD SUPPORT – Appeal from SSAT – consideration of the effect of court orders on Agency obligations.
Kimble & Kimble & Child Support Registrar (SSAT Appeal) [2009] FMCAfam 1059
CHILD SUPPORT – Appeal against decision of SSAT – father receiving child support for other children in another child support case – whether father entitled to multi case allowance in calculating his child support income.
Neal & Garnett [2009] FMCAfam 1139
FAMILY LAW – Parenting – arrangements for care of one child aged almost seven – where the parents are from different cultural backgrounds – where the child has been living primarily with the father for more than two years – where the mother seeks an order for equal time – where the father alleges that the two young children of the mother’s partner sexually abused the child in 2008 – whether the partner also poses a risk to the child – whether there are reasons to be concerned about the mother’s parenting capacity – whether the mother can be trusted to comply with an order that she not bring the child into contact with the partner and his children.
INDUSTRIAL LAW
Hughes v Mainrange Corporation Pty Ltd (No.2) [2009] FMCA 1044
INDUSTRIAL LAW – Small claims procedure – objection to jurisdiction – whether legislation has retrospective effect.
INDUSTRIAL LAW – Alleged unlawful termination – where no application made – where no election made – jurisdiction where no certificate and no election.
COSTS – Whether proceedings instituted without reasonable cause – whether unreasonable act or omission caused a party to incur costs.
MIGRATION
Mo v Minister for Immigration & Anor [2009] FMCA 1026
MIGRATION – Review of MRT decision – where applicant’s student visa was automatically cancelled after she did not respond to a s.20 notice – where student had not achieved satisfactory course progress as required by condition 8202 – whether condition 8202 is a “prescribed condition” for the purpose of s.20 of the Education Services for Overseas Students Act 2000 – where applicant alleged that education provider had not followed procedures for monitoring and reporting student progress set out in the National Code – effect of non-compliance considered.
22 October 2009
FAMILY LAW
Adamidis & Adamidis [2009] FMCAfam 1104
FAMILY LAW – Property proceedings – application to set aside a binding financial agreement.
Smirnov & Turova [2009] FMCAfam 1083
FAMILY LAW – Practice and procedure – parenting proceedings – subpoena issued to counselling organisation – counselling organisation objecting to inspection of material forming subject of subpoena, but not objecting to issue of subpoena – where counsellor spoke with and conveyed information to mother's legal representative after completion of counselling process – where court referred parties for reportable counselling, and parties understood that they were involved in reportable counselling – where counselling organisation asserts that, irrespective of court's intention and the parties' knowledge and belief, counselling was privileged and confidential – whether inspection of material forming subject of subpoena should be permitted – whether counsellor who spoke with mother's legal representative should be authorised, permitted or compelled to give evidence regarding matters conveyed during discussion – whether inspection of material or disclosure of information authorised or permitted having regard to ss.10D & 10E of the Family Law Act 1975 (Cth).\
INDUSTRIAL LAW
Fair Work Ombudsman v Bundy Market Meats Pty Ltd & Anor [2009] FMCA 994
INDUSTRIAL LAW – Workplace Relations – admitted contraventions of Workplace Relations Act 1996 – consideration of matters relevant to penalty.
Hughes v Mainrange Corporation Pty Ltd [2009] FMCA 1025
INDUSTRIAL LAW – Small Claims procedure – whether lawyer to be granted leave to appear – factors for consideration in determining whether leave granted.
Rentuza v Westside Auto Wholesale [2009] FMCA 1022
INDUSTRIAL LAW – Alleged unlawful termination – unlawful termination court application – requirement for s.777 Certificate to be attached – mandatory requirement – jurisdiction where no s.777 Certificate.
COSTS – Whether unreasonable act or omission caused a party to incur costs.
12 October 2009
FAMILY LAW
Fitzpatrick & Power [2009] FMCAfam 1007
FAMILY LAW – Children – interim relocation – best interests of young baby – with whom the child lives and spends time.
Halifax & Fabian & Ors [2009] FMCAfam 972
FAMILY LAW – Child aged 20 months at date of separation – applicant and mother in same-sex relationship – child conceived through assisted conception – biological father unknown – second respondents in same-sex relationship – seek to spend significant time with child and restrain child’s relocation – applicant and one of second respondents biological parents of another child conceived through assisted conception and born during applicant and mother’s relationship – threshold issue of whether second respondents are persons concerned with the care, welfare and development of the child.
(See attached file: Halifax & Fabian & Ors [2009] FMCAfam972.rtf) IT IS NOTED that publication of this judgment under the pseudonym Halifax & Fabian & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
Wright & Wright & Anor (SSAT Appeal) [2009] FMCAfam 979
CHILD SUPPORT – Departure from assessment – special circumstances – income or other financial resources – capacity to borrow not generally considered income or a financial resource.
CHILD SUPPORT – Departure from assessment – other matters – justice and equity – requirement to consider necessary commitments for self support.
1 October 2009
INDUSTRIAL LAW
Wilson v Nicholson & Anor [2009] FMCA 923
INDUSTRIAL LAW – Workplace Relations – admitted contraventions of Workplace Relations Act 1996 – consideration of matters relevant to penalty.
Workplace Ombudsman v Luik [2009] FMCA 922
INDUSTRIAL LAW – Workplace Relations – admitted contraventions of Workplace Relations Act 1996 – consideration of matters relevant to penalty.
MIGRATION
Le v Minister for Immigration & Anor [2009] FMCA 948
MIGRATION – Partner (Residence) (Class BS) Visa – spouse of sponsor – concern about paternity of sponsor’s daughter – refusal to have DNA test – applicant not satisfy spousal requirements – access to sponsor’s children – whether court order necessary – applicant to file amended applicant – adjournment necessary – costs.
29 September 2009
FAMILY LAW
Bishop & Bishop [2009] FMCAfam 957
FAMILY LAW – Property – marriage of 24 years – treatment of inheritance –treatment of a joint debt alleged to have been ‘forgiven’ – contributions of the parties initially and during relationship – small adjustment to Husband pursuant to s.75(2) – just and equitable.
Burke & Burke [2009] FMCAfam 984
FAMILY – Children – relocation (interstate) – best interests of children.
Lynch & Anor & Harper & Anor [2009] FMCAfam 935
FAMILY LAW – Children – interim hearing – best interests of child – death of sibling – contact with father and paternal grandparents whilst grieving – parental responsibility and sacrifice.
Summerby & Cadogen (No.2) [2009] FMCAfam 1018
FAMILY LAW – Transfer to Family Court – relevant consideration.
(See attached file: Summerby & Cadogen (No.2) [2009] FMCAfam1018.rtf) IT IS NOTED that publication of this judgment under the pseudonym Summerby & Cadogen (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act
1975 (Cth).
MIGRATION
MZYDA v Minister for Immigration & Anor [2009] FMCA 859
MIGRATION – Fear of generalised violence in a country, not fear for Convention reason.
24 September 2009
FAMILY LAW
Henson & Packard [2009] FMCAfam 889
FAMILY LAW – Parenting – relocation – mother seeking to relocate with daughter to Sunshine Coast, Queensland – mother’s husband taken up employment on the Sunshine Coast – father opposes relocation – father seeks equal time with the child in Sydney – whether relocation in child’s best interests.
Mayne & Mayne (No.2) [2009] FMCAfam 910
FAMILY LAW – Practice and procedure – costs – extension of time for filing costs application – stay of earlier orders made – access to documents produced under subpoena.
Yeldel & Baker & Ors (SSAT Appeal) 2009 FMCAfam 977
CHILD SUPPORT – Formula assessment – element of formula – level of care – ‘Substantial care’ – agreement as to the level of care – operation of
s.8(3) (now repealed) of CSAA.
MIGRATION
Lu & Anor v Minister for Immigration & Anor [2009] FMCA 891
MIGRATION – Application to review decision of Administrative Appeals Tribunal – cancellation of business skills visa – whether Tribunal misconstrued or misinterpreted the word “business” in s.134 of the Migration Act or failed to consider the applicants’ claims – whether no evidence for finding or failure to consider evidence.
Nguyen v Minister for Immigration & Anor [2009] FMCA 902
MIGRATION – Partner visa – whether Tribunal can accept / reject evidence – weight is question for Tribunal – whether Tribunal required to mention all issues.
SZNQI v Minister for Immigration & Anor [2009] FMCA 918
MIGRATION – Review of decision of Refugee Review Tribunal – whether Tribunal failed to consider an unarticulated claim of a particular social group – whether the Tribunal failed to appropriately consider whether applicant could reasonably and safely relocate within Nigeria – whether Tribunal hearings miscarried because of language and communication difficulties – no jurisdictional error – application dismissed.
14th September 2009
FAMILY LAW
Fisher & Fisher [2009] FMCAfam 826
FAMILY LAW – Property settlement – purchase of land and timber rights by husband – valuation of the timber – husband alleges misappropriation of funds by the wife – notional pool of assets – initial contributions of the husband – health issues of the husband – just and equitable order.
MIGRATION
Anupama v Minister for Immigration & Anor [2009]
FMCA 817 MIGRATION – Review of Migration Review Tribunal decision – refusal of a student visa – application of exclusion period – previous visa cancelled within three years – applicant claimed to have relied on Departmental advice that she could cease studying, which led to the cancellation of her previous student visa – whether that reliance established a “compassionate or compelling circumstance” considered – Tribunal found that it was the applicant’s responsibility to comply with the conditions on her visa – whether the Tribunal asked itself the wrong question considered.
WORDS AND PHRASES – “compelling circumstance”.
Khan v Minister for Immigration & Anor [2009] FMCA 867
MIGRATION – Visa – cancellation of Subclass 573 (Higher Education Sector) – Condition 8202 – contact hours – attendance records – jurisdictional fact – certiorari – mandamus
SZMTR v Minister for Immigration & Anor [2009] FMCA 892
MIGRATION – Application to RRT – strict time limit running from notification of delegate’s decision – notification not addressed in applicant’s name – addressed to name in false passport – failure to comply with statutory requirement – whether prejudice to applicant – discretion to refuse relief not exercised – mandamus issued to Tribunal.
SZNIL v Minister for Immigration & Anor [2009] FMCA 883
MIGRATION – Review of RRT decision – applicant a citizen of China – where Tribunal found that applicant was not a witness of truth and comprehensively rejected all of her claims – whether Tribunal properly considered corroborative evidence – whether Tribunal should have asked itself “what if I am wrong?” – whether Tribunal obliged to notify the applicant of its reasons for rejecting the written evidence of certain witnesses – where the subject of that evidence was clearly a fact in issue – where Tribunal rejected written statement of witness who claimed to be the President of the (Victorian) Falun Dafa Association – where that witness did not give evidence at the hearing and was not contacted at any other time – whether Tribunal failed to make reasonable enquiries.
3rd September 2009
MIGRATION
SZJQN v Minister for Immigration & Anor [2009] FMCA 810
MIGRATION – Review of RRT decision – applicant a citizen of Pakistan – where Tribunal unsuccessfully attempted to contact a witness during the Tribunal hearing – where witness based overseas and call placed at a very late hour – where Tribunal did not attempt to phone the witness at another time – whether this constituted a failure to make reasonable enquiries – whether applicant led to expect that witness would be contacted at another time – whether Tribunal failed to take into account essential corroborative evidence.
SZNCK v Minister for Immigration & Anor [2009] FMCA 810
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming fear of persecution in China because of the Chinese one child policy – whether the Tribunal erred in its consideration of the application of the policy in Fujian province to the applicant and his family considered – jurisdictional error found.
WORDS AND PHRASES – “Persecution”, “serious harm”, “Convention nexus”.
2nd September 2009
FAMILY LAW
Belby & Towler [2009] FMCAfam 869
FAMILY LAW – Property – superannuation – application under s.79A – lack of jurisdiction in Family Court to make consent orders – exercise of discretion – use of s.79A compared with appeal.
Galvez & Rendon [2009] FMCAfam 201
FAMILY LAW – Children – relocation – where mother proposes to move to northern New South Wales from Brisbane.
Hale & Hale (No.2) [2009] FMCAfam 873
FAMILY LAW – Final arrangements for parenting of children aged 12 and 9 – children currently live in Adelaide with the mother – father lives in country NSW – parties separated in 2002 – orders made in 2004 permitting children to relocate from Adelaide and inaugurating regime for children to spend time with father in NSW during school holidays – arrangements in respect of oldest child broke down in 2007 – mother alleges child unwilling to spend time with father due to concerns about his household – father asserts mother has consistently undermined the children’s level of relationship with him – father asserts only means by which children will have a meaningful relationship with him is if there is a change in residence arrangements – father asserts mother intent on alienating children from him – mother asserts children well settled in Adelaide – best interests – views of children – insight into parental obligations – effect of change of circumstances – possible separation of siblings – equal shared parental responsibility – duty to exchange information – implication of parties’ compromised capacity to communicate.
Priddle & Priddle & Ors (No.2) [2009] FMCAfam 876
FAMILY LAW – Application to discharge interim order for spousal maintenance – whether just cause to discharge order – whether change of circumstances sufficient to decrease award of maintenance – what is proper and just.
27th August 2009
ADMINISTRATIVE LAW
Hu v Commonwealth Ombudsman [2009] FMCA 785
ADMINISTRATIVE LAW – Application for orders
Court not empowered to make – no grounds made out for review.
FAMILY LAW
Derwent & Derwent & Anor [2009] FMCAfam 863
FAMILY LAW – Parenting orders – sexual abuse
or misconduct towards the grandchildren by the paternal grandfather – parental conflict– mother does not want children to spend time with paternal grandmother – time with father– time with paternal grandmother – mother and children residing in a refuge and unable to
disclose residential address to father.
Murdoch & Murdoch [2009] FMCAfam 752
FAMILY LAW – Parenting – competing proposals – mental health concerns of the mother and
father – primary and additional considerations – presumption of equal shared parental
responsibility.
Sadler & Sadler (SSAT Appeal) [2009] FMCAfam 855
CHILD SUPPORT – Appeal from decision of
SSAT – refusal of leave to bring application made out of time.
INDUSTRIAL LAW
Williams v Macmahon Mining Services Pty Ltd (No.2) [2009] FMCA 763
INDUSTRIAL LAW– Entitlement to annual leave – quantum of annual leave accrued – calculation of
entitlement – nominal hours worked –whether employee worked specified number of
hours per week – whether specified number of hours worked over a period – whether
employee employed on a full‐time basis.
INDUSTRIAL LAW – Calculation of basic periodic rate of pay –– whether criteria in
definition fulfilled.
INDUSTRIAL LAW – Set off – whether calculable on evidence.
WORDS AND PHRASES – “specified” – “specified number” – “specified number of hours per
week” – “specified number of hours over a period”.
WORDS AND PHRASES – “basic periodic rate of pay”.
WORDS AND PHRASES – “reasonable overtime”.
MIGRATION
SZMWI v Minister for Immigration & Anor [2009] FMCA 770
MIGRATION – Review of RRT decision – applicant a citizen of Iran – whether claim based on Kurdish ethnicity clearly arose on
materials before Tribunal – whether Tribunal was entitled to dismiss corroborative
evidence on the basis of credibility findings not amounting to a comprehensive rejection
of applicant’s story – whether Tribunal ought to have informed applicant of its suspicions
regarding the authenticity of that documentary evidence – whether Tribunal failed to
exercise its duty to enquire.
WZANU v Minister for Immigration & Anor [2009] FMCA 764
MIGRATION – Visa – Protection
(Class XA) visa – application for review of Refugee Review Tribunal decision affirming
decision of delegate – citizen of China claiming fear of persecution on the basis
of religion– credibility – merits review – conduct of migration agent – where
application for protection visa and application for review by the Refugee
Review Tribunal contained an address in Sydney which was not the
applicant’s residential address – where the applicant at relevant times resided in
Western Australia – no jurisdictional error.
PRACTICE & PROCEDURE – Identity – where details in application for protection visa and
application for review by Refugee Review Tribunal varied greatly from applicant’s
evidence to the Tribunal – where Court took evidence to satisfy itself that the person
before the Court was in fact the applicant for the visa and the applicant for review by
the Refugee Review Tribunal.
13th August 2009
FAMILY LAW
Middleton & Middleton [2009] FMCAfam 781
FAMILY LAW – Property – interim hearing –
conflict of interest – party/solicitor’s firm acting for solicitor & acting for wife in
separate proceedings – employed solicitor acting for principal of firm in which she is
employed – property application – Barro/costs orders – spousal maintenance – injunctive
relief.
Treloar & Nepean [2009] FMCAfam 847
FAMILY LAW – Application for stay of interim parenting orders pending appeal.
INDUSTRIAL LAW
LHMU & Anor v Cuddles Management Pty Ltd (No.2) [2009]
FMCA 746
INDUSTRIAL LAW – Penalty – consideration of factors relevant to penalty – deliberate refusal to deal with inquiries
or complaints by persons seeking compliance with an industrial law – ongoing course of
conduct – path of deliberate resistance – prior contravention – no contrition – no cooperation – need for general and specific deterrence.
Weerasinghe v Prism Grafix Pty Ltd [2009]
FMCA 728
INDUSTRIAL LAW– Unlawful termination – jurisdictional prerequisite – whether recourse to competent administrative authority.
WORDS AND PHRASES – “competent administrative authority” – “recourse”.
5th August 2009
FAMILY LAW
Douglas & Judd and Judd [2009] FMCAfam 678
FAMILY LAW – Parenting – relocation – where the mother proposes to move to Brisbane from Bundaberg.
Saxe & Mildmay [2009] FMCAfam 492
FAMILY LAW – Parenting – consideration of shared care arrangements for an eight year old boy in the context of allegations of risk to the child arising from mental health issues concerning the father’s wife – consideration of attachment of child to father – consideration of wishes of the child.
Watanabe & Watanabe (SSAT Appeal) [2009] FMCAfam 671
CHILD SUPPORT – Appeal from SSAT – percentage of care – whether interpretation of orders constituted an error of law.
INDUSTRIAL LAW
Workplace Ombudsman v Golden Maple Pty Ltd & Anor [2009] FMCA 664
INDUSTRIAL LAW – Penalty – admitted breach of civil penalty provision – consideration of factors relevant to penalty – course of conduct – whether more than one penalty sought.
MIGRATION
Maroun v Minister for Immigration & Anor [2009] FMCA 535
MIGRATION – Review of Migration Review Tribunal decision – Tribunal finding it lacked jurisdiction – review application made out of time – whether the applicant was properly notified of the delegate’s decision considered.
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