Judgments

MIGRATION – Writ for Habeus Corpus – pending decision of High Court of Australia in ASF17- s78B notice- reasonable time- short adjournment

PRACTICE AND PROCEDURE – Application for substituted service of documents to be served outside of Australia – how Federal Court Rules applied – whether necessary to attempt service under Hague Convention prior to seeking orders for substituted service – where respondents have received documents – whether orders deeming service appropriate

INDUSTRIAL LAW – FAIR WORK – application for relief – where respondents respectively declared to have contravened a series of provisions of the Fair Work Act 2009 (Cth) – assessment of relevant considerations – pecuniary penalties and compensation ordered pursuant to s.546(1) – no order as to costs.     

MIGRATION – Where applicant sought extension of time unnecessarily – substantive grounds seeking merits review – additional allegation that Tribunal failed to take into account relevant consideration  

MIGRATION LAW – application for judicial review – decision of the Administrative Appeals Tribunal – Protection (subclass 866) visa – where Tribunal made adverse credibility findings – country of reference found by Tribunal to not be as claimed – whether Tribunal imported an inappropriate element onto the ‘real chance’ test – whether country information reveals error in application of test – no error by the Tribunal in the application of the ‘real chance’ test – whether Tribunal erred in failing to consider applicant’s mental ill health as a cause of discrimination or stigmatisation – Tribunal gave consideration to claims of applicant’s mental ill health as they arose on the material – where Tribunal relied on reasoning in relation to refugee criteria to make a finding in relation to complementary protection criteria – no jurisdictional error made out – application dismissed. 

FAMILY LAW – Parenting – final hearing – four children, aged 12, 10, 6 and 4 – where the parties had a volatile and difficult relationship – where both parties perpetrated family violence – where the father has had no time or communication with the children for three years – where the father has breached the AVO on several occasions – where the father seeks a gradual increase from supervised time to unsupervised time – where the mother seeks a no time order – where the father has displayed a distinct lack of taking responsibility for his actions – where the Court considers there is an unacceptable risk of harm – best interests of the children.    

PRACTICE AND PROCEDURE – bankruptcy – application for review of decision of Registrar to make sequestration order – application for adjournment of review hearing – where debtor foreshadows challenge to underlying default judgment – consideration of relevant factors including overarching obligations and case management – adjournment refused 

BANKRUPTCY - application for review of Registrar’s decision to make sequestration order – hearing de novo - where respondent debtors have not filed material in support of application – where debtors sought adjournment to challenge underlying debt – adjournment refused – whether petitioning creditor proved outstanding debt – application for review dismissed and Registrar’s orders affirmed 

CONSUMER PROTECTION – Application for orders under ss 100 and 101 of the National Credit Code and s 123 of the Personal Property Securities Act 2009 (Cth) – where Court made orders under r 13.06(1)(e) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – application granted.   

MIGRATION - Protection Visa – whether Immigration Assessment Authority decision affected by jurisdictional error – where no error established in Immigration Assessment Authority’s decision – application dismissed 

MIGRATION – Safe Haven Enterprise Visa (SHEV) – Immigration Assessment Authority – what constitutes “new information” – whether there was a failure to act in accordance with section 473DE and s 473DD – application dismissed  

MIGRATION – Partner Visa – adverse information – discretionary relief – writs issued   

MIGRATION – Student visa application – application for judicial review of decision of Administrative Appeals Tribunal – where Judicial Registrar summarily dismissed application – application for extension of time to seek review of decision of Judicial Registrar– extension of time granted – de novo hearing of Minister’s application for summary dismissal of substantive application – where applicant has no reasonable prospect of establishing judicial error – application summarily dismissed.

MIGRATION – Review of Registrar decision – where application to Administrative Appeal Tribunal for review is out of time - where application for review of Registrar Decision is out of time and no application for extension made - where no arguable case for the relief sought was made out – extension refused – application dismissed 

MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant Student (Temporary) (Class TU) visa – whether Tribunal made unwarranted assumptions in not being satisfied that the applicant was a genuine temporary student for the purposes of cl 500.212(a) in Schedule 2 to the Migration Regulations 1994 (Cth) – Jurisdictional error – Application granted.

MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – matter listed for a hearing of the application for an extension of time – no appearance by or on behalf of the applicants – application dismissed for non-appearance pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).   

FAMILY LAW – PARENTING – children aged seven and five years – final hearing on limited issues – hearing conducted ‘on the papers’ – where there are final consent orders resolving all issues save for those relating to the children’s attendance at sporting and extracurricular activities – consideration of Child Impact Report – consideration of best interests – section 68B injunctions – parties to attend mediation at a later date.  

FAMILY LAW – PROPERTY – Interim Application – where the wife seeks interim property orders for the sale of three matrimonial properties – where husband agrees to the sale of one property only and seeks to retain others on a final basis – where consent orders made for husband to meet expenses of the properties – where husband incarcerated – where wife apprehends that husband will be unable to obtain funding to retain properties so that an order for sale is inevitable - principles relevant to interim sale of property – application dismissed as premature 

FAMILY LAW - Parenting – Interim orders – Competing proposals for increases in time with the father including commencement of overnight time – Where Family Report already issued 

FAMILY LAW – CONTRAVENTION – PARENTING –procedural matters – no case to answer application by the respondent – application opposed – two counts dismissed on no case to answer basis – balance of contravention applications to proceed – legal costs disproportionate to issues in dispute. 

FAMILY LAW – PARENTING – children aged seven and five years – final hearing on limited issues – hearing conducted ‘on the papers’ – where there are final consent orders resolving all issues save for those relating to the children’s attendance at sporting and extracurricular activities – consideration of Child Impact Report – consideration of best interests – section 68B injunctions – parties to attend mediation at a later date.  

FAMILY LAW – Parenting – relocation – where the Mother seeks to relocate with child to Brisbane, QLD from City B, NSW with the maternal Grandparents – where the Father lives in the City B region – Mother has child from previous relationship – Father has re-partnered and has child with new partner – not in child’s best interests to relocate with Mother as risks to child outweigh any benefit – fraught relationship between the parents characterised by history of family violence – significant concerns Father’s relationship with the child may not survive if permitted to relocate with the Mother – Mother demonstrated significant anxiety and significant difficulty facilitating child’s relationship with the Father post-separation– Mother pled guilty to family violence offences against Father – gradual increase in time with the Father to 5 nights per fortnight – parties to share parental responsibility 

FAMILY LAW – PRACTICE AND PROCEDURE – de facto financial proceedings – jurisdiction yet to be established - power to order financial conciliation conference and external dispute resolution – financial circumstances of parties – external dispute resolution to take place 

FAMILY LAW – parenting - interim hearing – schooling arrangements for a child aged 12 years old – where child attends two separate high schools during each school week – disagreement between parents as to which school he should attend – where due to time constraints the judge met with child – decision made on attendance at only one school – applications dismissed 

FAMILY LAW – PARENTING – Where the subject children are 7 and 10 years of age – Where the only outstanding issues requiring determination are with whom the children shall live and whether the injunctive orders restricting the contact of the children with the mother’s new partner should continue - Where both parties have historically had issues with respect to illicit drugs – Where neither party asserts the children are at risk in the other parties’ care – Where the father is Aboriginal and very involved in the Indigenous community - Where the mother now spends unsupervised time with the children each alternate weekend – Where the Court Child Expert opines that the children should return to live with the mother  – Where the Family Report is found to have significant shortcomings – Orders made for the children to remain living with the father and the injunctive orders relating to the mother’s new partner to continue for a further short period of time. 

FAMILY LAW – PARENTING – adjournment application - interim parenting orders

FAMILY LAW – REVIEW – procedural – Applicant Father seeks an injunction to prevent the Mother from relocating to an area some 5 hours away – the Deputy Registrar has moved the first return date to May to enable the parties to attend mediation and the Father wants the date brought forward to March – whether that decision is reviewable – whether the Father should be able to bring his application without first receiving a s60I certificate. 

FAMILY LAW – parenting – history of family violence – whether father poses an unacceptable risk – where report writers entered into finding of facts – no time order and injunctions made – where paternal grandmother seeks time – where court cannot trust paternal grandmother – where order for supervised time only made 

FAMILY LAW – PARENTING – Unacceptable risk – Orders made for children to spend no time with father. 

FAMILY LAW – CHILDREN – Parental responsibility – Spend time with arrangements – Family violence – Where the father’s communication with the mother undermines her parenting 

FAMILY LAW - PARENTING – child 11 – parenting capacity of father - live with mother- mother sole parental responsibility - spend time with and communicate with father in accordance with child’s wishes  

FAMILY LAW – Interim hearing – parenting arrangements for a child aged five years old – mother alleges child has made disclosures of a sexual nature – father denies allegations and asserts mother is alienating the child from him – assessment of risk – exposure to family violence – where the parties have no capacity to co-parent – where the matter is listed for trial in five weeks – assessment of risk at an interim stage – section 102NA considerations – proportionate response to risks identified – matters to be considered   

FAMILY LAW – final parenting orders – father have sole parental responsibility – children live with the father –  whether the children spend supervised time with mother – risk of psychological and emotional harm to the children by undermining their relationship with other parent  –  where the mother cant be trusted to not denigrate the father and his family – mother attending final hearing via video link – concern of mothers mental health issues – orders for no time unless agreed in writing with father in changed circumstances   

FAMILY LAW – costs – contested property proceedings – wife seeks award of indemnity cost – husband made allegations of fraud which were not accepted at trial – proceeding delayed by husband’s conduct – husband indicated proceedings were consensually resolved but withdrew consent – matter proceeded to trial – husband unrepresented – Calderbank letters – two settlement offers made by the wife – offers not accepted by the husband – legal principles applicable to costs – costs order made in favour of the wife on a party/party basis 

FAMILY LAW – CHILDREN – With whom a child lives – Allegations of unacceptable risk – Alcohol misuse – Mental health concerns – Family violence – Interim orders 

FAMILY LAW – PROPERTY – part-heard hearing adjournment application – outstanding damages issues where property not yet sold- adjournment granted 

FAMILY LAW – PARENTING – non-appearance as ordered - interim hearing - further order for attendance with child  

FAMILY LAW – PARENTING – interim hearing -orders permitting overseas travel vacated- with ability to reinstate- allegations requiring evidence under s67ZBB- adjourned for further interim hearing  

MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – matter listed for a hearing of the application for an extension of time – no appearance by or on behalf of the applicants – application dismissed for non-appearance pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).   

FAIR WORK – application in a proceeding dismissed under rule 13.06(1)(c) and (e) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules 2021 (Cth)- no proper basis for adjournment – no appearance by the applicant – joinder application dismissed   

INDUSTRIAL LAW – Application for civil penalties for contraventions of s. 499 and 500 of the Fair Work Act 2009 (Cth) – Where the Respondents made admissions as to contraventions – Declaratory relief – Order for penalties appropriate to meet the objective of deterrence  

HUMAN RIGHTS – no reasonable prospect of success – application dismissed 

MIGRATION – application for review dismissed – no appearance by the applicant 

MIGRATION – cancellation of a Bridging visa – decision of the Administrative Appeals Tribunal – whetherthe Tribunal erred by construing s 347(1) of the Migration Act 1958 (Cth) (the “Act”) as requiring the application fee to be paid within the prescribed period – whether the Tribunal made a jurisdictional error by construing s 347(1) of the Act as requiring at least 50% of the prescribed fee to be paid within the prescribed period – no jurisdictional error – application dismissed.   

MIGRATION ¬– application for review dismissed – no appearance by the applicants  

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision not to grant a protection visa to the applicant – whether the Tribunal made unreasonable or incorrect findings – whether the Tribunal failed to give proper, realistic and genuine consideration to claims – whether the Tribunal took into account irrelevant considerations – whether the Tribunal erred in application of relevant law – whether the Tribunal erred in its assessment of the applicant’s evidence and in making findings of fact – no jurisdictional error – application dismissed.  

MIGRATION – application for judicial review of a decision made by the Administrative Appeals Tribunal affirming a decision to refuse to grant student visas to the applicants – whether the Tribunal failed to give proper, genuine and realistic consideration to written submissions provided on behalf of the applicants – whether the Tribunal failed to consider a clearly articulated argument or an argument that clearly emerged on the materials – whether the Tribunal decision was affected by reasonable apprehension of bias – no jurisdictional error – application dismissed.  

MIGRATION – Resident Return Visas – allegations of procedural unfairness and apprehended bias – denial of procedural fairness – where material provided to the delegate was prejudicial to the applicants – application allowed – relief sought granted    

MIGRATION – Student Visa – Application for an extension of time for review of Registrar’s summary dismissal order – Where the substantive application did not have a reasonable prospect of success to make it in the interests of justice to extend time – Where the Applicant was not enrolled in a course of study and did not satisfy a mandatory criterion for the grant of a student Visa – Application for an extension of time to review the decision made by the Registrar dismissed 

PRACTICE AND PROCEDURE – application for an extension of time to seek review of an exercise of power by a Registrar – where a Registrar summarily dismissed the applicants’ judicial review application – extension of time refused.