Judgments

FAMILY LAW - PARENTING – consensual outcome – no order as to costs 

FAMILY LAW – Costs – should a costs order be made relating to protracted substantive proceedings – type and quantum – where conduct of the mother supported the overarching purpose and conduct of the father did not – failure to comply with previous orders including those for costs - satisfied that party and party costs should be paid by father – compensatory and justified  

FAMILY LAW – PARENTING –Where it is conceded that the parties’ short relationship was marred by family violence – Where the mother is the uncontested resident parent – Where the father has perpetrated family violence including intentionally damaging and destroying property - Where it is found that the father has engaged in a deliberate pattern of coercive and controlling behaviour both during the relationship and post separation – Where such behaviour included threats by the father to harm himself and the mother, exerting financial pressure upon her and the disposal of property in contravention of court orders – Where the mother’s conduct must be seen in the context of the family violence perpetrated by the father - Where the father had spent regular day-time only periods of time with the child until the conclusion of the final hearing when such time was suspended– Where there is an unacceptable risk of the child being exposed to family violence at the hands of the father and such risks cannot be ameliorated – Where it is found that the parenting capacity of the mother will be negatively impacted should the father continue to spend time with the child – Orders made for the father to spend no time with the child. 

FAMILY LAW – adjournment or stay application pending probate – where one party dies shortly after issue – whether the deceased needed a litigation guardian – whether proceedings invalid – where contested probate proceedings are underway in the Supreme Court of Victoria – where one party seeks an adjournment or stay until the probate proceedings are finalised   

FAMILY LAW – respondents late filed material – whether respondents should be permitted to rely upon late filed material – whether respondents should be heard at all – whether the application should proceed as undefended – what is an undefended hearing – whether interim property settlement orders should be made – whether orders should be made for the provision of documents and information – ability of directors of a company to obtain documents and information of the company for the purpose of Family Law act 1975 proceedings.  

FAMILY LAW – PARENTING – adjournment application – joinder application – applications dismissed. 

FAMILY LAW – PARENTING- substantial agreement – resolution of particular issues – time with parents when child turns 14 – orders made – reasons reserved  

FAMILY LAW – PARENTING – adjournment final hearing – refusal to vary supervised orders 

FAMILY LAW – PARENTING – costs orders – parent died – no order as to costs 

FAMILY LAW – PARENTING – retention of child – final parenting orders already made – child returned 

FAMILY LAW – PROPERTY – joinder application – severing securitisation orders made  

FAMILY LAW – PROPERTY – De facto relationship – Jurisdiction – De facto husband’s application for leave to institute property settlement proceedings out of time pursuant to section 44(6) of the Family Law Act 1975 (Cth) – Where the de facto wife died prior to an order being made pursuant to section 44(6) of the Family Law Act 1975 (Cth) – Where findings are made that there were no property proceedings before the Court at the date of the death of the de facto wife – Where the Court has no jurisdiction to hear the matter – Application dismissed 

FAMILY LAW - PROPERTY – about 22 months minimal and intermittent homemaker contributions by wife - inheritance of home by husband after end of matrimonial relationship – no financial contributions by wife to home – all outgoings homemaker contributions by husband including to daughter of wife - financial and occupation benefits obtained by wife after separation – husband excluded from home by condition of ADVO - orders for wife and daughter to vacate home - post vacation intimidation of husband by wife - unreasonable debts incurred by wife - alternation of property interests  

INDUSTRIAL LAW – General protections – where employer issues a direction requiring employees to wear face masks at the workplace or provide evidence they are exempt from being required to wear face marks – where employee provides statutory declaration in support of exemption from being required to wear a face mask – where the employer informs the employee that the statutory declaration is invalid and directs the employee to leave the employer’s premises – where the employer sends letter alleging employee failed to comply with employer’s direction and public health order that the employee wear a face mask at the employer’s premises and for that reason engaged in misconduct – where the employer invites the employee to attend a show cause meeting to respond to the allegation – where employee dismissed the employee from his employment – whether employee held or exercised any workplace rights within the meaning of s 341 of the Fair Work Act 2009 (Cth) (FW Act) – whether the employer took adverse action – whether the employer did not take adverse action because the employee held or exercised workplace rights or because the applicant had a disability on the basis of which he claimed an exemption from wearing a face mask – employer took adverse action against the employee because the employee failed to comply with public health order on the employer’s premises – application dismissed. 

MIGRATION – judicial review – protection visa – alleged failure to consider a claim – alleged misconstruction of the law – no jurisdictional error – application dismissed

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to apply an active intellectual process – whether the Tribunal failed to sufficiently explain its process of reasoning – jurisdictional error established – writs issued

MIGRATION – Judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – whether applicant satisfied public interest criterion 4020 – Tribunal not satisfied that compassionate or compelling circumstances justify grant of visa – no jurisdictional error established – application dismissed.

PRACTICE AND PROCEDURE – Adjournment application – adjournment refused.

PRACTICE AND PROCEDURE –Application to vacate final hearing to allow further time to retain new lawyer and obtain further evidence – whether applicant able to retain new lawyer for hearing – whether applicant has satisfactorily disclosed content of further evidence – whether applicant has provided satisfactory explanation in support of application – whether prejudice to respondent –  – application dismissed

MIGRATION – Employer Nomination (Class EN) (Subclass 186) visa – application for review of Registrar’s decision – application for an extension of time to seek review – Rule 21.02(2) - whether adequate explanation for delay – consideration of merits - no reasonable prospects of successfully prosecuting application – application dismissed.

MIGRATION - Student (Temporary) (Class TU) (Subclass 500) visa – enrolment in courses of repetitious nature – whether genuine temporary entrant - no jurisdictional error - application dismissed.

MIGRATION – Immigration Assessment Authority - Safe Haven Enterprise (class XE) (Subclass 790) visa – whether the Authority made a jurisdictional error under s 473DC of the Migration Act 1958 (Cth) by not interviewing the applicant – no jurisdictional error made out – application dismissed

HUMAN RIGHTS – Where the applicant was a disabled man who owned an assistance animal as defined under the Disability Discrimination Act – where the applicant was a member of the Respondent – where the Respondent refused to allow the applicant to take his dog on a feral animal shoot for safety reasons – where the applicant asserted that the refusal constituted discrimination under the Act – where no discrimination found – application dismissed.

MIGRATION – Student (Temporary) (Class TU) (subclass 500) visa – judicial review of a decision of the Administrative Appeals Tribunal – failure to consider – no jurisdictional error established – application dismissed.

MIGRATION – Cancellation of visitor (tourist) visa – Where visa holder on arrival in Australia stated an intention to seek political asylum – Where visitor visa was cancelled before visa holder cleared immigration – Whether the delegate misunderstood the legal consequences of the cancellation decision in the statutory framework – Where there was a departmental policy as to visa cancellation powers – Whether the delegate failed to assess the visa holder’s compelling need to travel to Australia or the delegate’s application of the policy was legally unreasonable – Whether the delegate notified the visa holder in writing of the grounds for cancelling the visa under s. 119 – Whether a decision was made to cancel the visa in contravention of s. 124 because the visa holder did not have an opportunity to respond to the notice of an intention to cancel the visa – Held that the delegate did not assess whether the visa holder had a compelling need to travel to Australia or the delegate’s reasons as to whether the visa holder had a compelling need to travel to Australia were unreasonable in the legal sense – Error material – Cancellation decision quashed

MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise Visa (Class XE) (subclass 790) – whether the Authority mischaracterised the applicant’s claim – grounds of judicial review have no merit – consideration of country information – application dismissed with costs

MIGRATION – review of Registrar’s decision – applicant sought orders seeking to reinstate his application for an extension of time to apply for judicial review – where Tribunal decided it had no jurisdiction to review the delegate’s decision because the application for review to the Tribunal was filed after the 28 day application period – whether grounds for judicial review of the Tribunal’s decision are arguable – no arguable grounds for judicial review disclosed and application dismissed

PRACTICE AND PROCEDURE – Affidavits – whether to allow filing of further affidavits – subpoenas – bias – application of Magna Carta – contempt of court – communications with Chambers – whether to issue order prohibiting communication with Chambers

INDUSTRIAL LAW – Application alleging contravention of general protection – alleged unlawful termination

HUMAN RIGHTS – Application for declarations and compensation for alleged sexual harassment – where the court was unable to make findings one way or the other that any pleaded conduct was unwelcome – where onus of proof not discharged by applicant – where application dismissed accordingly.

MIGRATION – Student (Class TU) (Subclass 500) visa – application for review of Registrar’s decision – practice and procedure - reinstatement - application for an extension of time to seek review – Rule 21.02(2) - no reasonable prospects of successfully prosecuting substantive application – application dismissed.

MIGRATION – Judicial Review – Protection visa – Whether the Tribunal failed to afford the applicant procedural fairness – Whether the tribunal unreasonably exercised its power by its failure to make necessary inquiries relevant to the issues in the review – Application dismissed

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal failed to consider evidence or an integer of the applicant’s claims – whether the Tribunal fell into the species of error considered in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 – application succeeds

INDUSTRIAL LAW – Fair work – small claims list –where applicant makes claims relating to breach of written contract, Banking, Finance and Insurance Award 2020 and the Fair Work Act 2009 (Cth) – whether contract was properly terminated pursuant to s 117(1) of the Fair Work Act 2009 (Cth) – whether new employment relationship formed after termination – where applicant failed to establish that he was in a relationship of employment following the lawful termination of his employment contract – no basis to award payment for work allegedly done under contract or the Award – application dismissed

MIGRATION – Judicial review application – decision of Immigration Assessment Authority – whether Secretary of Minister’s department failed to comply with obligation to provide Immigration Assessment Authority with last email address provided by the applicant for the purposes of receiving documents – whether last email address provided by the applicant provided for the purposes of receiving documents - whether material jurisdictional error. PRACTICE AND PROCEDURE – Application for an extension of time in which to file a judicial review application and an amended judicial review application – factors for consideration – extension of time not opposed by the Minister. WORDS AND PHRASES – “for the purposes of receiving documents”

MIGRATION – judicial review – protection visa – when do credibility findings give rise to jurisdictional error – whether there was an evidential basis for the Tribunal’s finding from which it made adverse credit findings – no jurisdictional error disclosed – application dismissed

MIGRATION – Immigration Assessment Authority – affirmed decision not to grant temporary protection (class XD) (subclass 785) visa – extension of time granted – consideration of country information – complaint that the Authority preferred some country information over other– whether the Authority is required to refer to each piece of information which is contrary to its findings – application for judicial review dismissed.

INDUSTRIAL LAW – determination of orders that should be made to give effect to reasons for judgment – whether good cause has been shown for not awarding pre-judgment interest – final order made.

MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA relevantly erred in finding that information was unable to be considered according to s 473DD of the Migration Act 1958 (Cth) – whether the IAA failed to consider material or made a decision affected by illogicality, irrationality or legal unreasonableness – application dismissed

MIGRATION – application for reinstatement of application for review of decision of registrar – where registrar dismissed judicial review application under r 13.13(a) – where review of decision by registrar dismissed by Court following non-attendance by applicant at hearing – whether judicial review application had reasonable prospect of success – application for reinstatement dismissed with costs

MIGRATION – Judicial Review – Subclass 457 Visa – Where applicant did not meet English language requirement – Tribunal had no discretion to waive requirement – No procedural unfairness – Where applicant conceded the Tribunal made no error– Application dismissed – Costs awarded

MIGRATION – Application for judicial review – application to extend time for filing – where Applicant previously filed application for review in the Court – where previous application in the Court was dismissed – where Applicant seeks to re-litigate claims that should have been raised earlier – where delay in filing is extensive without sufficient explanation – application to extend the time for filing is refused – application dismissed.

MIGRATION – application for judicial review of a decision by an officer of the Department – whether the applicant was effectively provided with the notice required under s 501CA(3) of the Migration Act 1958 (Cth) – whether the applicant made representations within the prescribed period – application succeeds

BANKRUPTCY – application under s 58(3)(b) of the Bankruptcy Act 1966 (Cth) for leave to continue proceedings in the District Court of New South Wales – parties – considerations regarding grant of leave – Trustee consent to orders proposed – leave granted

 MIGRATION – application for judicial review of Administrative Appeals Tribunal decision – affirmation of decision to refuse grant of Partner (Temporary) (Class UK) visa – whether the Tribunal misapplied or misconstrued the definition of “spouse” – whether the Tribunal conflated the two limbs of s 5F(2)(d) of the Migration Act 1958 (Cth) – whether the Tribunal gave separate consideration to the question of whether the parties lived separately or apart on a permanent basis – whether the Tribunal afforded the applicant procedural fairness – whether the Tribunal complied with s 360 of the Migration Act – jurisdictional error established – writs issued – costs order made

MIGRATION – Persecution – Review of Administrative Appeals Tribunal (“Tribunal”) decision – visa – protection visa – refusal – no matter of principle.

MIGRATION – Application to review decision of the delegate where the delegate refused to waive visa condition 8503 – whether delegate was in error by failing to take account of claims and evidence or acting unreasonably, or applying the wrong test as to whether circumstances were ‘compelling’– no error established – application dismissed.

PRACTICE AND PROCEDURE – adjournment - respondent failed to appear at application for default judgment – respondent contacted chambers asserting medical incapacity and requesting adjournment for indeterminate period – no formal application for adjournment – applicant not met with substantive defence – longstanding proceedings – case management considerations - leave granted to proceed with default judgment application

BANKRUPTCY – Creditor’s Petition for a sequestration order – whether requirements for sequestration order have been established – payment of legal fees which are disputed – whether the defendant is solvent – application for dismissal of Creditors Petition – Where the debtor is able to pay her debts but is unwilling to do so

MIGRATION – application for judicial review – decision of the Administrative Appeals Tribunal – Subclass 820 Partner (Temporary) (Class UK) visa – withdrawal of sponsorship – s 375A certificate – futility – no jurisdictional error established – application dismissed.

MIGRATION – Protection (Class XA) visa – judicial review of a decision of the Administrative Appeals Tribunal – jurisdictional fact – requirement of state of satisfaction of jurisdictional fact – illogicality or irrationality in finding of jurisdictional fact – procedural fairness – no jurisdictional error established – application dismissed.

 MIGRATION– judicial review – Partner visa refusal – no jurisdictional error established – application dismissed