Evans v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (No 2) [2011] FCA 1207

FEDERAL COURT OF AUSTRALIA

Evans v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (No 2) [2011] FCA 1207 Citation: Evans v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (No 2) [2011] FCA 1207

Appeal from: Joan Evans and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 578

Parties: GORDON DOUGLAS EVANS AS EXECUTOR OF THE ESTATE OF THE LATE JOAN GLADYS EVANS v SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

File number: NSD 1214 of 2010

Judge: COWDROY J

Date of judgment: 27 October 2011

Catchwords: ADMINISTRATIVE LAW – Appeal from decision of Administrative Appeals Tribunal – application of assets test under Social Security Act 1991 (Cth) – characterisation of payment from parent to child – whether payment was made pursuant to a legally binding agreement – whether consideration was provided for such payment – whether Tribunal was correct in applying presumption regarding agreements between family members – whether Tribunal failed to consider alleged post-contractual conduct

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44 Federal Court Rules 1979 O 53 r 7 Social Security Act 1991 (Cth) ss 1123, 1124, 1126AA

Cases cited: Collins v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 198 Council of the City of Sydney v Goldspar Australia Pty Ltd (ACN 002 705 991) and Another (2006) 280 ALR 437 County Securities Pty Limited v Challenger Group Holdings and Anor [2008] NSWCA 193 Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 Evans v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 28 Craig v The State of South Australia (1995) 184 CLR 163 Frendo v Secretary, Department of Social Security (1987) 13 ALD 681 Gray v Gray [2004] NSWCA 408 Joan Evans and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 578 Jones v Padavatton [1969] 2 All ER 616 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Preston v Secretary, Department of Family and Community Services [2004] FCA 300 Re Minister for Immigration and Multicultural Affairs and Others; Ex parte Durairajasingham (2000) 58 ALD 609 Secretary, Department of Social Secretary [sic] v Murphy (1998) 52 ALD 268 Selen v Selen [2011] Fam CA 310 Tadrous v Tadrous [2010] NSWSC 1388 Xu v Shi and Anor [2009] NSWSC 955