Judgments

FAMILY LAW – Parenting – one child, 11 years – where the Court set the matter down for final hearing and made orders pursuant to s 102NA of the Family Law Act 1975 – where the mothers previous legal representatives withdrew a month out from the final hearing – where the mother has attended the final hearing self-represented – where the mother sought an adjournment of the final hearing on day one – where the mother subsequently left the Court precinct at the start of day two, citing her need to return home to City H to seek mental health assistance – where the Court adjourned the trial in order for a proper hearing to be conducted at a later date.   

FAMILY LAW – CHILDREN – final hearing – child aged three years – final consent orders made on all property and parenting issues save for the issue of overseas travel –where the parties have a dysfunctional co-parenting relationship – where Country B is the mother’s country of origin – where the mother seeks for the child to be able to travel with her on up to two occasions per year for a cumulative period not exceeding six weeks – where the mother seeks for the child to travel to a non-Hague Convention country – where the father seeks for travel to be conditional upon the child attaining the age of 10 years – consideration of recommendations of Family Report Writer – orders made as sought by the father.  

FAMILY LAW - PROPERTY SETTLEMENT - Where the wife seeks significant notional add backs to the property pool – Where such add backs are rejected - Where it is just and equitable to make an adjustment – Where a two pool approach is appropriate noting the substantial amount of superannuation held by the husband and where the husband seeks a superannuation splitting order – Where the husband has made higher financial contributions – Where the wife has been and continues to be the primary carer for the children, one of whom has special needs – Where at issue is the mix of superannuation and non-superannuation property each party is to receive - Where the children spend significant and substantial time with the husband – Contribution finding made in favour of the husband – Adjustment made in favour of the wife for future needs.

FAMILY LAW – mother seek declaration of parentage – whether to proceed in the absence of a party – evidence of service vague and opaque – mother was assessed for child support soon after birth – child was removed from mother’s care and child support ceased –  mother’s application for child support denied when child returned to mother – mother has not been in contact with father since child was born – father and child have been in contact previously – child no longer wants contact with the father – service dispensed with – child – service by post may not be appropriate in age of electronic communication and social media – whether respondent’s demographic would have ever written or received a letter – utility of affidavits of service to unknown last known address – telephone enquiry of respondent on day of hearing ascertained current email address – always back self-interest, at least you know its trying 

FAMILY LAW - Unpaid child maintenance – where payer father was not present in Australia – where payer father became entitled to a sum of money from his mother’s estate – where payee mother has passed – garnishee order against the estate of payer father’s mother – unpaid child support found payable to payee mother’s estate. 

FAMILY LAW – CONTRAVENTION – Costs – Parenting – Where it was alleged the father contravened by overholding the child following periods of time spending – Where the father admitted the breaches at the commencement of Trial but maintained he had a reasonable excuse – Where after giving evidence at Trial, the father plead guilty to each count without reasonable excuse – Father to enter into a Bond – Orders for costs. 

FAMILY LAW – PARENTING – relocation – mother seeks child (aged 6) live with her in Town B–  child currently lives with mother in Suburb C and Town B and spends time with the father five nights per fortnight – evaluation of competing proposals – orders made for child to live with mother in Town B and to spend alternate weekends with father during school terms – orders provide for child to spend greater time with father if he moves closer to Town B – order regarding child’s school attendance in Town B.

FAMILY LAW – PARENTING – relocation – mother seeks children (now aged 11 and 8 years) live with her in Region B and for the children to spend time with the father on alternate weekends (from Friday to Sunday), for one additional weekend each month, and for additional holiday time – application resisted by the father who seeks children continue to spend equal time with both parents – evaluation of competing proposals – mother’s application refused – order for children to continue spending equal time with both parents – no order made confining the area in which the parties may live with the children – all other parenting orders made by consent.

FAMILY LAW – PARENTING - Whether 11 and 8 year old boys should live with their father in Victoria or their mother in Queensland 

FAMILY LAW – PROPERTY – where there is significant agreement as to the facts and the assets to be divided – whether there should be a one or two pool approach – impact of the Husband’s initial contributions – impact of the Wife having primary care of a child with special needs and an inferior income.

FAMILY LAW – PARENTING - whether the impact on the mother’s parenting capacity of nearly four year old child spending time with his father is such that the child should spend no time with his father

FAMILY LAW - PARENTING AND PROPERTY – undefended hearing –– de facto relationship 16 years- two children – mother has sole care since separation in 2021 -no binding financial agreement – purported financial agreement set aside – alternation of property interests

FAMILY LAW – parenting – family violence – sole parental responsibility – father has not seen the children since separation – where the father shows lack of insight and failure to address his behaviour – where the father poses an unacceptable risk to the children – whether or not orders should be made for no time or for supervised time – whether time should be graduated to unsupervised – whether or not orders should be made for family therapy – airport watchlist and passport orders

FAMILY LAW – SINGLE EXPERT WITNESS – application for removal – earlier valuation for third party bank – independence of single expert– duties – non-disclosure of earlier valuation – materiality – selection of single expert – remediation if non-disclosure - application disallowed

FAMILY LAW – Harman and/or implied obligation – are special circumstances required the documents in another court – whether special circumstances in this application – very late application – whether costs should be ordered – special circumstances found – applicant released from implied obligation

FAMILY LAW – PARENTING – interim application after matter not reached – stood over till final hearing date

FAMILY LAW – Parenting – two male children aged 11 and 9 – second round of parenting proceedings – where the parties consented to final orders in December 2018 – where the parties had difficulty implementing the final orders – where the parties’ communication was unproductive – where the two boys where being dragged into the conflict by both parents – where the relationship between the father and the children began to break down in part due to disclosures of physical abuse in the father’s care by the children – where the children became resistant to spending time and communicating with the father – where the children are now estranged from the father and fearful of him – where the Court considers there would be an emotional or psychological risk to the children if they were required to spend time with the father – best interests of the children.

FAMILY LAW – Parenting – Allegations of physical, sexual and financial abuse – No findings of fact sought – No risk established – Parenting capacity – Children to live with father and spend time with mother

FAMILY LAW – Final Parenting – Allegations of physical, emotional, psychological and financial abuse – Criminal convictions – Unacceptable risk – Children to live with mother and spend no time with father

FAMILY LAW – PARENTING – Assessment of risk – Where Father subject of shooting – where Father previously convicted of offences – where Mother previously convicted to driving under the influence of alcohol and drugs – where each parent has history of drug use – Where Mother has history of mental health issues – where Father has mental health vulnerabilities – Allegations of family violence – Determination of parental responsibility

HUMAN RIGHTS – DISCRIMINATION – where the applicant alleges that the first respondent discriminated against him unlawfully in the course of his employment with the second respondent, in breach of sections 9 and 18C of the Racial Discrimination Act 1975 (Cth) – where the applicant claims that the second respondent is vicariously liable for those breaches – where the applicant also claims that the second respondent has independently breached section 9 of the Act by alleged underpayment of wages to the applicant – where the applicant seeks damages, declarations and an apology – consideration of whether the alleged conduct occurred and if so whether it was in breach of section 9 – consideration of whether any conduct was made otherwise than in private pursuant to section 18C of the Act – finding that the conduct did not breach sections 9 and 18C of the Act – application dismissed. 

MIGRATION – Persecution – Review of Immigration Assessment Authority (“IAA”) decision – visa – protection visa – refusal.

 ADMINISTRATIVE LAW – Allegation that the IAA’s decision was affected by jurisdictional error by reason that it was unreasonable, illogical, irrational and against the weight of the evidence.

CONSUMER LAW – where applicant seeks declaration and orders under s 123 of the Personal Property Securitys Act 2009 (Cth) and s 100 of the National Credit Code – where respondent has failed to meet vehicle loan repayments – where applicant seeks to enter property to seize vehicle – where respondent did not participate in the proceedings – where application for substituted service was granted previously – order made requiring the respondent to deliver vehicle within 7 days – order made that applicant can enter the respondent’s residential property or any other property he has apparent control over for the purposes of repossessing the vehicle – respondent to pay applicant’s costs in a fixed amount 

PRACTICE AND PROCEDURE – Fair Work – where earlier finding of contravention of s 340(1) of the Fair Work Act 2009 (Cth) – where finding of liability reflected failure of the respondent employer to discharge onus under s 361(1) of the Fair Work Act- where proceeding listed separately for hearing on relief – where respondent sought to rely on evidence of “decision-maker” to make submissions about compensation and penalty – where “decision-maker” had not given evidence at the liability hearing – where applicant objects to parts of affidavit – whether respondent is estopped from relying on parts of evidence of “decision-maker” because they invite the Court to trespass on findings of fact or law made in the liability judgment – objections upheld in part 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant partner visa – whether Tribunal failed to consider or have regard to text messages between applicant and sponsor in considering degree of companionship and emotional support they drew from each other – no jurisdictional error established – application dismissed 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether Tribunal was required to make finding as to why militia group issued threat letter to applicant’s family - application dismissed 

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – where the applicant did not attend a scheduled hearing – whether the Tribunal’s exercise of discretion under s 362B(1A)(a) of the Migration Act 1958 (Cth) was legally unreasonable or otherwise affected by error – application dismissed 

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visa - Application for judicial review of a Registrar’s decision – No reasonable prospects of successfully prosecuting application – Application dismissed. 

BANKRUPTCY – application of trustee under s 146 of the Bankruptcy Act 1966 (Cth) for distribution of dividends – where no statement of affairs filed by the Bankrupt with the Official Receiver – application heard ex parte – orders that the distribution of dividends proceed as if the Bankrupt had filed a statement of affairs as required by the Act – application granted. 

MIGRATION – Skilled Independent (Points-Tested) (Subclass 189) visa - Application for review of a Registrar’s decision – Application for an extension of time to seek review – Rule 21.02(2) – Whether adequate explanation for delay – Consideration of merits – Allegation of fraud perpetrated by Migration Agent – Allegation unsupported by evidence – No particulars of jurisdictional error – No jurisdictional error apparent – No reasonable prospects of success – Application for review dismissed with costs. 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether Tribunal erred in not accepting country information on which applicant relied or erred in preferring and relying on other country information – application dismissed 

MIGRATION – application for judicial review of a decision by the Tribunal affirming a decision not to grant the first applicant a Medical Treatment (Visitor) (Class UB) visa – whether the Tribunal ignored the first applicant’s medical condition and failed to recognise the first applicant as a person who needed medical treatment – whether the Tribunal failed to understand the first applicant’s serious depression – whether the Tribunal misunderstood the first applicant’s plan and reason why the first applicant did not wish to return to Nepal – whether the Tribunal was correct in finding that it did not have jurisdiction with respect to the second applicant – no jurisdictional error – application dismissed  

MIGRATION – judicial review – protection visa refusal – credibility – no jurisdictional error established – application dismissed. 

INDUSTRIAL LAW – FAIR WORK ACT – general protections court application – application for an extension of time – matters relevant to the discretion – extension of time granted

MIGRATION – judicial review of a decision made by the Administrative Appeals Tribunal – student visa – whether s 366C of the Migration Act 1958 (Cth) was enlivened – no jurisdictional error established – application dismissed.  

MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority (“IAA”) – whether the IAA misinterpreted or misapplied s 473DD of the Migration Act 1958 (Cth) in the manner contended – whether the IAA failed to consider claims or evidence – application dismissed

MIGRATION – protection visa – decision of the Immigration Assessment Authority – whether the IAA failed to consider a claim which clearly emerged on the material before it – membership of a particular social group – whether the IAA failed to give genuine consideration to the applicant’s claims – illogicality – no jurisdictional error established – application dismissed 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa - whether Tribunal erred in finding applicant was not credible - no jurisdictional error established – application dismissed.  

MIGRATION – protection visa – application for review of a decision of the Administrative Appeals Tribunal – whether the Tribunal erred in failing to consider the risks faced by the applicant’s family as forming a basis for the fear of persecution faced by the applicant – whether the claim of vicarious harm to the applicant was articulated or suggested on the material before the Tribunal – jurisdictional error established.

MIGRATION – Judicial Review – Where Administrative Appeals Tribunal (Tribunal) refused to grant applicant a student visa as it found the applicant was not a genuine applicant for entry and stay as a student as required under cl 500.212 – Whether the Tribunal failed to give the applicant an opportunity to respond to reasons for refusal – Whether Tribunal used Direction No. 69 as a checklist – Whether the Tribunal failed to obtain further information under s 359 of the Act – Where applicant stated that he experienced communication issues with the Tribunal in circumstances where he was provided access to an interpreter – application dismissed 

MIGRATION – Judicial review – Protection visa – Administrative Appeals Tribunal – Indonesia - Where the Tribunal was only required to assess the complementary protection criterion – Whether Tribunal assessed harm at present or in the reasonably foreseeable future – Where Tribunal used the words ‘Indonesia today’ – Unfair reading of Tribunal’s decision – application dismissed 

MIGRATION – judicial review – extension of time application – merits of underlying application – lengthy delay – unsatisfactory explanation for delay – extension of time refused  

MIGRATION – judicial review – refusal of student visa – application under s 476 of the Migration Act 1958 (Cth) – Tribunal determined application on the basis of cl.500.211 (lack of enrolment in a course of study) rather than cl.500.212 (genuine temporary entrant) – whether failure to consider cl.500.211 constituted jurisdictional error – whether Tribunal failed to afford the Applicant procedural fairness 

PRACTICE AND PROCEDURE – review of Registrar’s decision – where Registrar made declaration under s 176(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) that discovery is in the interests of the administration of justice – whether Registrar had delegated power to make a declaration – statutory interpretation – Registrar had been delegated power to make declaration –
hearing de novo – whether orders for discovery ought be made – whether discovery is appropriate, in the interests of the administration of justice – where the Court is satisfied discovery is in the interests of the administration of justice – declaration under s 176(2) and orders for discovery made – discovery order set aside for uncertainty – alternative discovery and other orders made – application for review of Registrar’s decision otherwise dismissed

INDUSTRIAL LAW – restaurant industry – application for relief in relation to alleged contraventions of general protections and various minimum entitlement, regular payment and payslip obligations under the Fair Work Act 2009 (Cth) – application for default judgment– where Respondent has not entered an appearance nor participated in proceedings despite being afforded numerous opportunities – declarations made and partial relief ordered on default. 

INDUSTRIAL LAW – restaurant industry – application for relief in relation to alleged contraventions of general protections and various minimum entitlement, regular payment and payslip obligations under the Fair Work Act 2009 (Cth) – application for default judgment– where Respondent has not entered an appearance nor participated in proceedings despite being afforded numerous opportunities – declarations made and partial relief ordered on default.  

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether Tribunal failed to consider evidence – whether Tribunal failed to consider claim - no jurisdictional error – application dismissed  

MIGRATION – Application for extension of time - where Minister opposed extension from commencement of hearing until filing of written submissions more than 6 years later - Whether Immigration Assessment Authority erred by failing to consider evidence, failing to seek information from applicant and/or failing to invite applicant to interview

INDUSTRIAL LAW – Where in the primary judgment the court made declarations that there were three contraventions of civil penalty provisions of the Fair Work Act as to the non-payment of notice, redundancy pay and accrued and unused annual leave – Where the contraventions resulted from a lack of care rather than a deliberately flouting of legal obligations – Where the First Respondent took reasonably prompt corrective action – An order for a penalty of 7.5% of the maximum penalty for each contravention was appropriate to meet the objectives of specific and general deterrence 

MIGRATION – extension of time application to review a decision of the Administrative Appeals Tribunal – relevant considerations – extension of time refused.