APPEARANCES: Mr Bartfield of Queen’s Counsel, (instructed by William Graham Carman, Solicitors, PO Box 947, Cairns QLD 4870) appeared on behalf of the appellant wife.

Mrs Pagani of Counsel, (instructed by Miller Harris Lawyers, PO Box 7655, Cairns QLD 4870) appeared on behalf of the respondent husband.

Name of Appeal  IABH & HRBH
Appeal Number  NA22/2005, NA27L/2005
Date of Appeal hearing                   10^th day of August 2005
Date of Judgment  18^th day of May 2006
Coram  Finn, Coleman, May JJ

Catchwords: Appeal against orders for property settlement and child support.
Appeal against conclusion that contingent liability should be brought to account in determining net assets of the parties upheld as such conclusion not supported by the evidence, which did not establish either that action had been, or would be taken resulting in the husband being called upon to honour the guarantee he had given – Evidence did not establish that the trading position of the entity in whose favour the husband had given the guarantee would cause the husband to be called upon pursuant to the guarantee.
Challenge to trial Judge’s decision to take into account in determining net assets of the parties Capital Gains Tax and selling expenses with respect to real estate of the parties upheld on the basis that the evidence did not on its face establish that the sale of such entities was “inevitable” and the conclusion was not otherwise supportable by the trial Judge’s reasons – Rosati v Rosati (1998) FLC 85-043 and G and G [2001] FamCA 1453 considered.
Challenge to trial Judge’s decision with respect to child support upheld on the basis that the reasons for such decision were inadequate.

Parties directed to make further submissions as to future course of proceedings in the light of the Court’s intention to allow the appeal.
Costs of the appeal reserved.

By Notice of Appeal filed 18 April 2005 the wife appealed against orders made by Buckley J on 22 March 2005 in proceedings between herself and the husband. The orders of the trial Judge which the wife challenged related to settlement of property and child support. As was clarified by her learned Senior Counsel, the wife sought that, in lieu of the sum awarded to her by the trial Judge, being $2,567,376.80, the wife be awarded $2,918,363.03, rather than the sum of $3,131,340.50 sought in her Notice of Appeal. The wife sought that, in lieu of the sum of $150.00 per week per child for child support determined by the trial Judge, the sum of $300.00 per week per child be ordered. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading IABH & HRBH

Details

AGLC: IABH & HRBH [2006] FamCA 379
Case: [2006] FamCA 379
Decision Date: 18 May 2006

CaseChat Overview and Summary

The Full Federal Court heard an appeal concerning the interpretation of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth) in relation to a protection visa application. The applicants, IABH and HRBH, sought judicial review of decisions made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, which affirmed the refusal of their protection visa applications. The core of the dispute revolved around whether the Minister's delegate had properly considered the applicants' claims for protection under the relevant legislative framework.

The central legal issues before the Full Federal Court were: (1) whether the delegate erred in law by failing to consider the applicants' claims for protection in accordance with the non-refoulement obligations under international law, specifically Article 33 of the Refugee Convention, as incorporated into Australian domestic law; and (2) whether the delegate's decision was affected by an error of fact or law in assessing the credibility of the applicants' claims and the objective country information. The applicants argued that the delegate had applied an incorrect legal test when assessing their fear of persecution.

The Court found that the delegate had indeed made an error of law by failing to properly consider the applicants' claims in light of Australia's non-refoulement obligations. The delegate's assessment had focused on whether the applicants could demonstrate a "real chance" of persecution, which the Court held was an insufficient standard. Instead, the Court reiterated that the correct legal test requires an assessment of whether there is a "real chance" that the applicant would suffer harm amounting to persecution, taking into account all relevant circumstances, including the subjective fear of the applicant and objective country information. The Court emphasised that the delegate must engage with the entirety of the applicant's case and not isolate aspects of it.

Consequently, the Full Federal Court allowed the appeal, set aside the decisions of the Minister's delegate, and remitted the applications for protection visas to the Minister for redetermination according to law.

Orders