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.
27 August 2010
FAMILY LAW
Barone & Bianco (SSAT Appeal) [2010] FMCAfam 836
CHILD SUPPORT – Appeal from decision of SSAT – whether there was error in law by SSAT in refusing to consider retrospective application to depart from administrative assessment.
Bonner & Neville (SSAT Appeal) [2010] FMCAfam 848
CHILD SUPPORT – Appeal from SSAT – parties consent to setting orders aside – whether Court should exercise discretion.
MIGRATION
Khan & Ors v Minister for Immigration & Anor [2010] FMCA 546
MIGRATION – Review of Migration Review Tribunal decision – refusal of a skilled residence visa – Tribunal finding that a trade skills assessment preceding the visa application was made on the basis of false material – interpretation of clause 880.230 relating to false or misleading information – 900 hours work experience requirement is a requirement of the skills assessment authority not the Tribunal and the relevant time for the purposes of deciding whether false or misleading information was given to obtain a skills assessment is the time of the skills assessment.
Mevada v Minister for Immigration & Anor [2010] FMCA 616
MIGRATION – Requirement that application be “accompanied by evidence” – whether could be lodged up to date of decision.
INTERPRETATION – Meaning of “accompanied by”.
SZNIL v Minister for Immigration & Anor [2010] FMCA 470
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as a Falun Gong practitioner – Tribunal making adverse credibility findings – whether the Tribunal overlooked relevant material considered – applicant claiming to undertake Falun Gong activities on each of her three visits to Australia – Tribunal disregarding the applicant’s conduct since her most recent arrival – whether the Tribunal breached s.91R(3) of the Migration Act 1958 (Cth) considered – Tribunal not disregarding the applicant’s conduct on her second visit to Australia but failing to consider the opinion of the Victorian President of the Falun Dafa Association that at that time the applicant was a genuine and committed practitioner – alternatively, the Tribunal could not have made a decision on the motivation for the applicant’s conduct in Australia with confidence as the applicant’s motivation changed over time – failure by the Tribunal to consider what the position would have been if it had been wrong about the applicant’s motivation – jurisdictional error established.
SZOCT v Minister for Immigration & Anor [2010] FMCA 425
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as a Christian – applicant not believed – applicant tested at the Tribunal hearing about his knowledge of the Bible – Tribunal requiring the applicant to recite a favourite passage from the Bible – Tribunal applying a standard of what was necessary to establish adherence to the Christian faith – jurisdictional error established.
SZOHH v Minister for Immigration & Anor [2010] FMCA 501
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in India – applicant’s claims accepted – Tribunal finding that the applicant could relocate to avoid the harm experienced in his home state of Kerala – Tribunal finding that if the applicant relocated and continued his political activities he might face a real chance of further persecution but that the applicant could seek effective state protection – consideration of the question of why the past failure of state protection in Kerala would not be repeated outside Kerala – no explanation by the Tribunal of its finding on the issue of the availability of effective state protection – finding not supported by the country information before the Tribunal – finding inconsistent with findings that the applicant had a well-founded fear of persecution in Kerala and faced a real risk of persecution in the future even if he relocated - jurisdictional error established.
(See attached file: SZOHH v Minister for Immigration & Anor [2010]
FMCA501.rtf)
Zeini v Minister for Immigration [2010] FMCA 604
MIGRATION – Review of a decision of a delegate of the Minister – applicant withdrawing visa application – delegate thereafter having no jurisdiction to determine the application.
7 August 2010
FAMILY LAW
Ackers & Ducley [2010] FMCAfam 809
CHILD SUPPORT – Application to set aside child support agreement – declared bankrupt after agreement registered – section 136 Child Support (Assessment
Act) 1989 – agreement set aside – departure from administrative assessment of child support.
Capps & Gates [2010] FMCAfam 756
FAMILY LAW – Parenting – children – significant acrimony & conflict between parents – both capable parents.
Carlson & Acuff & Anor (SSAT Appeal) [2010] FMCAfam 677
CHILD SUPPORT – Appeal regarding child support – SSAT.
Henderson & Harry [2010] FMCAfam 624
FAMILY LAW – Parenting – interim – sole parental responsibility sought by father – recovery order sought by mother.
Pike & Howlett [2010] FMCAfam 802
FAMILY LAW – Declaration of de facto relationship – what constitutes a de facto relationship.
INDUSTRIAL LAW
Fair Work Ombudsman v Nerd Group Australia Pty Ltd & Anor [2010] FMCA 569
PRACTICE AND PROCEDURE – Amendment to application and statement of claim – whether rule 7.01(1) of the Federal Magistrates Court Rules 2001 (Cth) sufficient – scope of rule 7.01(1) – discretionary power – factors related to exercise of discretion – whether resort to Federal Court Rules required.
INDUSTRIAL LAW – Civil penalty proceedings – application to amend application and statement of claim.
MIGRATION
Banala v Minister for Immigration & Anor [2010] FMCA 570
MIGRATION – Review of decision of MRT – where applicant had not complied with requirement of competent English at time of application nor had he applied for an IELTS test that had not been taken at time of application – whether reg.485.215(c) was redundant or should have effect found for it in Habib v Minister for Immigration – whether reg.485 can be distinguished from reg. 885 considered in Berenguel – whether Court should find Habib was clearly wrong.
SZOIW v Minister for Immigration & Anor [2010] FMCA 568
MIGRATION – Review of RRT decision – applicant claimed protection on the ground of religion – where applicant named cousin as a witness to his attendance at Church in Australia and that cousin subsequently questioned about his knowledge of bible stories – where Tribunal did not recognise a paraphrased version of a story from the Bible and used the witness’ perceived failure to recount his favourite bible story as a basis to refuse to hear from further Church attendees – whether Tribunal exceeded its jurisdiction by taking on the role of arbiter of religious doctrine– s.91R(3) – whether Tribunal wrongfully disregarded applicant’s conduct in Australia – where Tribunal at no stage determined to grant the visa – whether reasonable apprehension of bias demonstrated by decision not to call further witnesses.
30 July 2010
BANKRUPTCY
Stillman v Pascoe [2010] FMCA 548
BANKRUPTCY – Trustee in bankruptcy – interim application for summary dismissal of application for inquiry into conduct of Trustee – alleged freezing of bank account by Trustee – duties of Trustee – principles in relation to summary dismissal – whether bank account frozen – whether misconduct by Trustee.
FAMILY LAW
Horton & Hurst [2008] FMCAfam 56
FAMILY LAW – Children – property.
Luther & Luther [2010] FMCAfam 761
FAMILY LAW – Interim parenting orders sought – best interests of young child – Father has previous conviction and prison sentence for possession of child pornography – recommendation for supervised time from Child at Risk Health Unit & from Office of Children, Youth & Family Support – Father seeks unsupervised time – assessment of “unacceptable risk”.
20 July 2010
FAMILY LAW
Cannon & Cannon [2010] FMCAfam 681
FAMILY LAW – Children and parenting – conflict between parents – drug use of parent – differing parenting styles (intense/relaxed) contributing to conflict between parents – regime of drug testing – self-executing orders.
Dees & Dees [2010] FMCAfam 682
FAMILY LAW – Children – expert report in general terms on Asperger’s Disorder compared with family consultant’s very recent observations of child – interim proceedings – shared care arrangement & “best interests” of children – sole occupation of former matrimonial home (general principles) – spousal maintenance (general principles) – notice to & joinder of third parties in property proceedings – necessary parties – principles of advocacy.
Hopper & Hopper [2010] FMCAfam 699
FAMILY LAW – Child aged 11 – child estranged from father – father asserts child being manipulated by mother – mother asserts child has been subjected to father’s violent behaviour and is making rational decision to withdraw from him – interim arrangements – should child undergo course of court mandated therapy to repair paternal relationship prior to re-introduction – best interests – weight to be given to child’s views.
MIGRATION
Liu v Minister for Immigration & Anor [2010] FMCA 485
MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether s.379A(4) of the Migration Act 1958 (Cth) requires the same officer to date a document and dispatch it – whether registered mail is prepaid post or other prepaid means for the purposes of s.379A of the Migration Act
1958 (Cth) – whether the deeming provisions of s.394C of the Migration Act
1958 (Cth) create a rebuttable presumption of fact – whether the applicant received a letter inviting additional information in accordance with the Migration Act 1958 (Cth) – whether the Migration Review Tribunal properly exercised its discretion under s.359 of the Migration Act 1958 (Cth) – whether the Migration Review Tribunal should have made any further enquiry as to whether the applicant had received a letter inviting additional information before exercising its discretion to proceed to make its decision on the review without taking any further action.
SZODR v Minister for Immigration & Anor [2010] FMCA 402
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in Pakistan – applicant not believed – Department and Tribunal notified that the applicant showed anxiety symptoms and was unfit to work - applicant attending Tribunal hearings – adjournment of hearing – applicant diagnosed after the Tribunal decision as suffering post traumatic stress disorder in relation to her experiences in Pakistan – neither the applicant nor the Tribunal aware of the diagnosis at the time of the Tribunal hearings but Tribunal on notice of the symptoms – whether the Tribunal complied with
s.425 considered – Tribunal not commenting on a medical assessment of the applicant – whether the Tribunal overlooked relevant material considered.
PRACTICE AND PROCEDURE – Observations on the appropriateness of a notice disputing facts filed on behalf of the Minister.
14 July 2010
BANKRUPTCY
Ivory v Telstra Corporation Limited & Ors (No.2) [2010] FMCAfam 432
BANKRUPTCY – Bankruptcy Notice – application to set aside Bankruptcy Notice – agreement to forego costs orders – no consideration – application to summarily dismiss application to set aside Bankruptcy Notice.
FAMILY LAW
Farrens & Farrens (SSAT Appeal) [2010] FMCAfam 325
CHILD SUPPORT – Appeal from decision of SSAT – findings of fact and whether error of law established.
King & Smith & Anor [2010] FMCAfam 690
FAMILY LAW – Children – with whom a child lives – competing applications by a non-relative and biological parents – cultural issues.
Spencer & Spencer [2010] FMCAfam 640
FAMILY LAW – Parenting issues – mother seeks to maintain home schooling of children – father seeks to have children attend mainstream school.
Walker & Fielding (SSAT Appeal) [2010] FMCAfam 320
CHILD SUPPORT – Appeal from decision of SSAT – whether the approach of the SSAT private education expenses amounted to error of law – whether approach to the financial circumstances of the applicant by the SSAT amounted to an error of law.
MIGRATION
SZOGI v Minister for Immigration & Anor [2010] FMCA 390
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Lebanon – applicant disbelieved in part – applicant nominating two witnesses to support his claims – witnesses attending Tribunal on the day of the hearing but not called into the hearing room – failure by the Tribunal to consider the applicant’s wishes as set out in his Response to Hearing Invitation – breach of s.426(3) of the Migration Act 1958 (Cth) – jurisdictional error established.
24 June 2010
BANKRUPTCY
Croft v Becton Investments Management Ltd (No.2) [2010] FMCA 419
BANKRUPTCY – Sequestration order – review of sequestration order of Registrar – whether failure to serve originating process – whether default judgment on which bankruptcy based a nullity.
PRACTICE AND PROCEDURE – BANKRUPTCY – Extension of time to file application to set aside sequestration order – factors for consideration.
EVIDENCE – Whether affidavit to be admitted into evidence where deponent unavailable for cross-examination.
HP Mercantile Pty Ltd v Turco and Marinelli & M Turco (No.2) [2010] FMCA 149
BANKRUPTCY – Contested creditors petition –whether the Court should look behind the judgment debt considered – competing consents by three different trustees lodged with the Official Receiver in Perth and Sydney – whether the Court bound to accept all the consents considered – where there are competing consents the Court may direct one trustee to administer the bankrupt estate pending the resolution of the competing consents.
Park v Barclay [2010] FMCA 397
BANKRUPTCY – Application for sale of property against co-owner of real property – power to make orders.
FAMILY LAW
Ford & Pelly [2010] FMCAfam 228
FAMILY LAW – Equal shared parental responsibility – equal time or substantial and significant time – Family Report – meaningful relationship – neglect – parental responsibility – Part VII, Family Law Act 1975 – s.60CC primary and additional considerations.
Henley & Garrett and Garrett & Henley [2010] FMCAfam 314
FAMILY LAW – Parenting – enforcement of orders – change of parenting orders sought by respondent – respondent brings enforcement of spousal maintenance and child support orders – application for receiver.
Lambre & Keenan [2010] FMCAfam 578
FAMILY LAW – Property – section 44(3) application – leave granted – section 79 adjustment made.
Weedon & Keen [2010] FMCAfam 555
FAMILY LAW – Equal shared parental responsibility – meaningful relationship – parental responsibility – s.60CC primary and additional considerations – watch orders.
INDUSTRIAL LAW
Keldote Pty Ltd & Ors v Riteway Transport Pty Ltd [2010] FMCA 394
INDUSTRIAL LAW – Independent Contractors Act 2006 – Jurisdiction to review services contract which is no longer on foot when application is filed – power to vary services contract which is no longer on foot when application is filed.
INDUSTRIAL LAW – Breach of contract – contract varied with retrospective effect by Court’s order pursuant to Independent Contractors Act 2006 – alleged breach occurred after retroactive date of variation but before order for variation pronounced – whether there could be a breach of contract in such circumstances.
INDUSTRIAL LAW – Breach of a contract varied under Independent Contractors Act 2006 – nature of relief available.
INDUSTRIAL LAW – Contract for services – repudiatory breach – distinction between termination of services and termination of contract.
INDUSTRIAL LAW – Contract terminable on reasonable notice – purported acceptance of non-existent repudiation cannot amount to notice to terminate contract within a reasonable time.
CONTRACT – Contract for services – contract of indefinite duration – implication of term implying right to terminate on reasonable notice – identification of reasonable period of notice – relevant considerations –contractual relationship similar to an employment relationship – criteria
related to concepts of severance and redundancy not relevant
considerations.
DAMAGES – Contract for services – breach of contract – damages for failure to give reasonable notice of termination.
DAMAGES – Breach of contract – damages in the reasonable contemplation of the parties at the time of making the contract as the probable result of the breach.
JURISDICTION – “matter” – Express jurisdiction under Independent Contractors Act 2006 – accrued jurisdiction – claim under Independent Contractors Act 2006 and related claim for damages comprised the same matter – associated jurisdiction – claim for damages consequent upon contractual variation pursuant to Independent Contractors Act 2006 a federal matter associated with claim under the Independent Contractors Act 2006.
Welsh v Allblend Holdings Pty Ltd (No.2) [2010] FMCA 377
INDUSTRIAL LAW – Proceedings instituted in Fair Work Division – whether jurisdiction of Court to be exercised in both Fair Work Division and
General Division – whether direction necessary from Chief Federal
Magistrate allocating matter to Fair Work Division or General Division.
COURTS AND TRIBUNALS – Federal Magistrates Court of Australia – jurisdiction – associated jurisdiction – incidental jurisdiction.
WORDS AND PHRASES – “associated jurisdiction” – “incidental jurisdiction”.
MIGRATION
Khadgi v Minister for Minister for Immigration & Anor [2010] FMCA 381
MIGRATION – Review of Tribunal decision to cancel a DD Visa Sub-Class 880 – whether Tribunal properly considered matters referred to in Reg 2.41 Migration Regulations 1994.
1 June 2010
FAMILY LAW
Kandal & Khyatt & Ors [2010] FMCAfam 508
FAMILY LAW – Application by child to restrain her parents and step-father from removing her from the Commonwealth – restraining order protecting the child – orders made ex-parte on the evidence of the Australian Federal Police.
Mabry & Mabry & Anor (SSAT Appeal) [2010] FMCAfam 388
CHILD SUPPORT – Appeal from SSAT – error of law – no matter of principle.
Ralph & Medlock (SSAT Appeal) [2010] FMCAfam 311
CHILD SUPPORT – Appeal from decision of SSAT – findings about special circumstances – findings about just and equitable circumstances.
Thomas & Harry (SSAT Appeal) [2010] FMCAfam 310
CHILD SUPPORT – Appeal from decision of SSAT – challenge to the findings made about income of the applicant.
MIGRATION
Lu v Minister for Immigration & Anor (No.2) [2010] FMCA 251
MIGRATION – Review of Migration Review Tribunal decision – refusal to revoke cancellation of a student visa – whether the Tribunal decision vitiated by fraud considered – applicant paying a bribe in order to obtain a favourable decision – applicant misled as to the process and the outcome – whether the applicant was deterred from participating in the review process considered – whether the Tribunal was disabled from performing its statutory functions considered.
O'Dohoghue v Minister for Immigration & Anor [2010] FMCA 345
PRACTICE AND PROCEDURE – Adjournment – principles – alleged failure to disclose documents – relevance of documents – where applicant subject of extradition proceedings – High Court special leave application pending.
PRACTICE AND PROCEDURE – Discovery – principles applicable in Federal Magistrates Court – relevance of documents.
PRACTICE AND PROCEDURE – Joinder of parties – application to join the Prime Minister – proper parties in relation to an application to review a migration decision.
MIGRATION – Migration Review Tribunal – Employer Nomination (Residence) visa.
7 May 2010
ADMINISTRATIVE LAW
Welsh v Allblend Holdings Pty Ltd [2010] FMCA 281
COURTS AND JUDGES – Federal Magistrates Court – jurisdiction – power to make orders in relation to matter in which Federal Magistrates Court has jurisdiction – whether associated jurisdiction in respect of matters subject of proposed cross-claim.
PRACTICE AND PROCEDURE – Application for leave to amend response and defence and institute cross-claim – factors for consideration – nature and importance of amendment – circumstances giving rise to amendment – delay and explanation – case management – costs and prejudice.
FAMILY LAW
Bernard & Simon [2010] FMCAfam 500
FAMILY LAW –Parenting – children aged 3 and 2 – father serving a term of imprisonment for sexually assaulting the mother – not eligible for parole until 2014 – father seeking an order that the children spend time with him prior to his release – only option is visits at the prison – mother opposing the children spending any time with the father either while he in prison or after his release – competing applications for change of the children’s surnames.
Child Support Registrar & Cadogan [2010] FMCAfam 406
CHILD SUPPORT – Enforcement summons – enforcement of child support debt.
Hefferon & Maltby [2010] FMCAfam 440
FAMILY LAW – Proceedings irregularly commenced – application for transfer to Family Court – meaning of ‘pending’ application – whether order to transfer constitutes an exercise of jurisdiction – meaning of ‘proceedings’ – discretion of Court pursuant to s.39 of the Federal Magistrates Act 1999.
JURISDICTION – Federal Magistrates Court’s jurisdiction to determine whether a matter falls within its jurisdiction – jurisdiction of Federal Magistrates Court to transfer a matter over which it has no jurisdiction to the Family Court – proceedings transferred from Federal Magistrates Court.
WORDS AND PHRASES – “proceeding pending”.
Kindree & CSR & Anor (SSAT Appeal) [2010] FMCAfam 357
CHILD SUPPORT – Appeal from SSAT – error of law – assessment of earning capacity – no material before Tribunal upon which the conclusion could properly be based.
MIGRATION
Singh v Minister for Immigration & Anor [2010] FMCA 305
MIGRATION – Visa cancellation by Minister’s delegate – applicant’s
authorised recipient validly notified of decision by registered mail –further notification to authorised recipient – whether second notification gives rise to new period in which review application can be commenced.
ESTOPPEL – Applicant’s authorised recipient validly notified of decision by registered mail –further notification to authorised recipient – whether estoppel arises from second notification which prevents Minister from asserting that review application commenced out of time.
23 April 2010
ADMINISTRATIVE LAW
Piersons Pro-Health Pty Ltd & Ors v Silvex Nominees Pty Ltd & Anor (No.3) [2010] FMCA 250
COSTS – Application by respondents to set aside order for costs in favour of respondents – costs order made and entered following judgment – basis for award of costs in Federal Magistrates Court – whether any basis for setting aside costs orders – whether costs order interlocutory – whether consent of party in whose favour costs order made – usual order as to costs – alternative explanation for respondents’ failure to seek costs order at hearing – failure of lawyer to read files – prejudice – procedural fairness.
FAMILY LAW
Bagley & Bagley (SSAT Appeal) [2010] FMCAfam 215
CHILD SUPPORT – Application for an extension of time to appeal from a decision of the Social Security Appeals Tribunal – extension of time granted – consideration of the appeal – father deriving income from a company – Tribunal setting the father’s child support income at a much higher amount than would be derived from his taxable income.
Lilley & CSR & Ors (SSAT Appeal) [2010] FMCAfam 378
CHILD SUPPORT – Application for an extension of time to lodge an appeal – SSAT – procedural fairness – operation of s.117(2) of the Child Support
(Assessment) Act 1989 – Need to provide particulars.
CHILD SUPPORT – Costs – Applicant wholly unsuccessful – costs ordered against applicant.
Owens & Owens (No.3) [2010] FMCAfam 3
FAMILY LAW – Property Settlement – assets and liabilities – treatment of alleged debts to the husband's family – “add backs” – whether appropriate to add back to property pool moneys removed by husband and paid to his family after separation, purportedly as a loan repayments – where husband's evidence regarding alleged loans vague, inconsistent and generally unsatisfactory – where alleged loans found to be ex post facto reconstructions of earlier transactions or groups of transactions – where husband's financial relations with his family complex and lacking in transparency – where husband found to have formed intention to prevent wife from potentially making any substantial property settlement claim, and defeat any claim she may ultimately make – where financial contributions sourced in the husband's family nevertheless recognised as form of contribution by or on behalf of husband – weight to be given to unquantifiable financial contributions from husband's family.INDUSTRIAL LAW
Fair Work Ombudsman v Security Protection Services Pty Ltd & Ors [2010] FMCA 252
INDUSTRIAL LAW – WORKPLACE RELATIONS – Contraventions of award and collective agreement – previous history of contraventions – need for specific deterrence.
PENALTIES – Principles for fixing – totality principle.
MIGRATION
Gayudan v Minister for Immigration [2010] FMCA 233
MIGRATION – Decision of delegate not to waive visa condition – consideration of Migration Regulations – Regulation 2.05(4) – what constitutes change in circumstances – alleged jurisdictional error by delegate in dealing with evidence.
Mulwala Golden Inn Restaurant Pty Ltd and Zhu & Ors v Minister for Immigration & Anor [2010] FMCA 228
MIGRATION – MRT considering application for permanent visa – Tribunal allegedly erroneously considering availability of temporary visa class – jurisdictional error found – writ issued.
SZNTF v Minister for Immigration & Anor [2010] FMCA 4
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in China – applicant’s mother making separate protection visa application but similar claims – evidence given by the mother used in the applicant’s case – whether the Tribunal breached ss.420, 424A or 425 of the Migration Act 1958
13 April 2010
FAMILY LAW
Dawson & Dawson (SSAT Appeal) [2010] FMCAfam 221
CHILD SUPPORT – Appeal from decision of SSAT – whether error of law in considering just and equitable requirement.
Samworth & Beasley [2010] FMCAfam 36
FAMILY LAW – Parenting orders – child aged 9 years 6 months – child now a member of a blended family in father’s household – father seeking equally shared time resisted by the mother – relationship with half siblings in both the mother’s household to be considered – wishes of the child – historically poor ability of the parents to communicate constructively – consideration of “meaningful relationship” – consideration and relevance of research material relating to shared parental care where parental conflict is high – best interests of the child.
Wales & Falls & Anor (SSAT Appeal) [2010] FMCAfam 116
CHILD SUPPORT – Appeal from SSAT – formula assessment – special circumstances – high costs of contact – not for Tribunal to determine whether contact reasonable.
8 April 2010
COPYRIGHT
Solitaire Homes Pty Ltd v Urban Ventures Pty Ltd & Ors [2010] FMCA 185
COPYRIGHT – Alleged infringement of copyright of project home house plans – subsistence of copyright – “substantial part” and house plans – general
principles regarding damages or account of profits – cost of the
proceedings a factor in the award of exemplary damages.
PRACTICE & PROCEDURE – Application to set aside Default Judgment – application granted.
EVIDENCE – Application to adduce tendency evidence.
7 April 2010
BANKRUPTCY
HP Mercantile Pty Ltd v V Turco and Marinelli & M Turco (No.2) [2010] FMCA 149
BANKRUPTCY – Contested creditors petition – whether the Court should look behind the judgment debt considered – competing consents by three different trustees lodged with the Official Receiver in Perth and Sydney – whether the Court bound to accept all the consents considered – where there are competing consents the Court may direct one trustee to administer the bankrupt estate pending the resolution of the competing consents.
FAMILY LAW
Baker & Landon [2010] FMCAfam 280
FAMILY LAW – Children – parentage: presumption, proof and evidence – child conceived through assisted conception – child not biologically related to applicant – whether applicant is a parent of the child – whether applicant and respondent in de facto relationship at time of conception.
FAMILY LAW – Children – parentage – presumption, proof and evidence – whether donor of genetic material a parent for the purposes of the Family Law Act 1975.
Gallup & Gallup [2009] FMCAfam 839
CHILD SUPPORT – Application to set aside a binding child support agreement – meaning of exceptional circumstances – cumulative effect of circumstances.
Julius & Murphy & Anor (SSAT Appeal) [2010] FMCAfam 267
CHILD SUPPORT – Appeal from SSAT – determining income amounts – relevant considerations.
30 March 2010
BANKRUPTCY
HP Mercantile Pty Ltd v V Turco and Marinelli & M Turco (No.2) [2010] FMCA
149
BANKRUPTCY – Contested creditors petition – whether the Court should look behind the judgment debt considered – competing consents by three different trustees lodged with the Official Receiver in Perth and Sydney – whether the Court bound to accept all the consents considered – where there are competing consents the Court may direct one trustee to administer the bankrupt estate pending the resolution of the competing consents.
COPYRIGHT
Solitaire Homes Pty Ltd v Urban Ventures Pty Ltd & Ors [2010] FMCA 185
COPYRIGHT – Alleged infringement of copyright of project home house plans – subsistence of copyright – “substantial part” and house plans – general
principles regarding damages or account of profits – cost of the
proceedings a factor in the award of exemplary damages.
PRACTICE & PROCEDURE – Application to set aside Default Judgment – application granted.
EVIDENCE – Application to adduce tendency evidence.
FAMILY LAW
Baker & Landon [2010] FMCAfam 280
FAMILY LAW – Children – parentage: presumption, proof and evidence – child conceived through assisted conception – child not biologically related to applicant – whether applicant is a parent of the child – whether applicant and respondent in de facto relationship at time of conception.
FAMILY LAW – Children – parentage – presumption, proof and evidence – whether donor of genetic material a parent for the purposes of the Family Law Act 1975.
STATUTES – Interpretation – particular words and phrases – specific interpretations – other Cases – meaning of de facto relationship – Family Law Act 1975, Part VII.
Gallup & Gallup [2009] FMCAfam 839
CHILD SUPPORT – Application to set aside a binding child support agreement – meaning of exceptional circumstances – cumulative effect of circumstances.
Julius & Murphy & Anor (SSAT Appeal) [2010] FMCAfam 267
CHILD SUPPORT – Appeal from SSAT – determining income amounts – relevant considerations.
17 March 2010
FAMILY LAW
Duncan & Hocking [2009] FMCAfam 1066
FAMILY LAW – Costs – conflict of interest.
Gladman & Tucker [2009] FMCAfam 1098
FAMILY LAW – Children – best interests – allegations of abuse – family violence – mental health issues – supervision – extreme alchemy practices.
Sinclair & Sinclair (SSAT Appeal)
CHILD SUPPORT – Appeal from Social Security Appeal Tribunal – appeal out of time.
10 March 2010
FAMILY LAW
Owens & Owens (No.2) [2010] FMCAfam 2
FAMILY LAW ─ Practice and procedure - application for judicial officer to be disqualified on grounds of apprehended bias and actual bias - where submissions appear to confuse (a) reasonable apprehension that judicial officer might not bring an impartial and unprejudiced mind to his dealings with counsel with (b) reasonable apprehension that judicial officer might not bring an impartial and unprejudiced mind to the resolution of the question that the court is required to decide - where no nexus demonstrated between (a) the judicial officer's views regarding counsel or a party and (b) the resolution of the question the judicial officer is required to decide - where thrust of application appears to be apprehension that judicial officer will decide the case adversely to one party.
FAMILY LAW - Practice and procedure - waiver - application of principles in Vakauta v Kelly (1989) 167 CLR 568 - delay in making application for disqualification of judicial officer on ground of bias - where application received late and without warning - where court had been led to believe that counsel was occupied preparing his client's closing submissions -
where deadline for filing client's closing submissions allowed to pass in favour of preparation of detailed application for disqualification of judicial officer.
FAMILY LAW - Practice and procedure - legal practitioners - counsel - where counsel has behaved inappropriately, including by showing disrespect to the bench and to opposing counsel and arguing with the bench - where counsel's
behaviour in court demonstrates what appears to be a fundamental
misunderstanding of the role of an advocate in proceedings in a busy trial court - power of court to control counsel - power of court to remove counsel - reference to principles in Grimwade v Meagher (1995) 1 VR 446.
FAMILY LAW - Parenting orders - whether court should make orders for equal shared parental responsibility or sole parental responsibility - where orders made giving wife sole parental responsibility, subject to certain conditions, for children's education (including schools that they are to
attend) and religious upbringing - where parties otherwise retain equal shared parental responsibility.
FAMILY LAW - Parenting orders - parent with whom children should live -
whether equal shared care or some other arrangement appropriate and in children's best interests - schooling - case turns on its own facts.
MIGRATION
Kabir v Minister for Immigration & Anor [2010] FMCA 132
MIGRATION - Migration Review Tribunal - student visa - whether completed substantial part of course - whether undertaken at least five years study
in English - whether jurisdictional error - discretion to refuse
prerogative relief.
WORDS AND PHRASES - “substantial” - “substantial part” - “successful completion” - “year” - “of study”.
Kaur v Minister for Immigration [2010] FMCA 85
MIGRATION - Application to review decision of delegate - Student
(Temporary) (Class TU) visa - request for information - no information provided in prescribed time - no power to extend time.
TRADE PRACTICES
Roberston v Knott Investments Pty Ltd [2010] FMCA 142
TRADE PRACTICES - Misleading or deceptive conduct in relation to employment - representations as to future matters - where applicant approached recruitment agent seeking to relocate to Australia after 22 years abroad -
whether respondent represented to applicant that he would be employed for a minimum of three years - where duration of employment not specified in contract and representations on the subject said to be “superseded” and “excluded” by “no reliance” clause - where applicant’s position made redundant after less than 18 months due to substantial economic downturn -
whether applicant relied on representation in accepting offer of employment - whether representation based on reasonable grounds -
evidentiary onus in s.51A(2) discussed.
1 March 2010
BANKRUPTCY
Holbrook v Muntz [2010] FMCA 105
BANKRUPTCY – Sequestration order – application by controlling trustee – whether special resolution not passed – exercise of discretion to make sequestration order.
BANKRUPTCY – Appointment of trustee in bankruptcy – whether controlling trustee ought to be trustee in bankruptcy – controlling trustee’s fees fixed at creditors meeting – whether conflict between trustee roles.
FAMILY LAW
Ankh & Banos [2010] FMCAfam 114
FAMILY LAW – Divorce – defended – jurisdiction.
FAMILY LAW – Divorce – defended – whether ground for divorce made out.
Ball & Riley [2010] FMCAfam 161
FAMILY LAW – Parenting – three children, twins aged 7 and girl aged 4 years and 10 months at trial – 9/5 fortnightly parenting regime in favour of mother – father seeks week about time or alternatively reversal in his favour of current regime of time – father seeks order for equal shared parental responsibility – mother seeks 10/4 fortnightly regime in her favour – mother seeks order for sole parental responsibility on basis of lack of parental cooperation – evidence that children have a good relationship with both parents.
FAMILY LAW – Parenting orders – order 9/5 fortnightly parenting regime in favour of mother – order for equal shared parental responsibility – whilst parents lack a cooperative relationship no evidence of “exceptional circumstances” to justify the order sought by mother – order that parents attend parenting orders program – order for facilitated dispute resolution in the event of dispute.
Costa & Fairbank (SSAT Appeal) [2010] FMCAfam 39
CHILD SUPPORT – Appeal from decision of SSAT – whether the SSAT erred in finding special circumstances for departure – whether SSAT erred in its considerations of the income and expenses of the applicant.
MIGRATION
SZOBA v Minister for Immigration & Anor [2010] FMCA 99
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in China – applicant not believed – observations on the testing of religious faith – observations on the application of s.91R(3) of the Migration Act 1958 (Cth) – no reviewable error found – application dismissed.
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