Jukes and Doyle
[2005] FMCAfam 92
•28 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JUKES & DOYLE | [2005] FMCAfam 92 |
| FAMILY LAW – Maintenance – placing of father’s name on watchlist order in order to preserve maintenance application. |
Family Law Act 1975 (Cth), s.68B
Waugh & Waugh [2000] FamCA 1183
| Applicant: | MARIA JUKES |
| Respondent: | JOSEPH BRADLEY DOYLE |
| File No: | PAM 300 of 2005 |
| Delivered on: | 28 January 2005 |
| Delivered at: | Parramatta |
| Hearing date: | 28 January 2005 |
| Judgment of: | Emmett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Harper |
| Solicitors for the Applicant: | Mr Benjamin, Watts McCray Lawyers |
ORDERS
And in the circumstances I order that:
Application in accordance with Minutes of Proposed Orders is dismissed.
Pursuant to Rule 6.14 of the Federal Magistrates Court Rules service will be deemed to have been effected by service upon either parent of the Respondent Father at 1 Weemala Rd, Pennant Hills.
There is to be at least 2 clear days between service and any Court hearing.
Grant leave to the Applicant Mother to file and serve any Amended Application and Affidavit in support provided service complies with Orders 2 and 3.
A copy of these Orders is to be served upon the Respondent Father in accordance with Orders 2 and 3.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 300 of 2005
| MARIA JUKES |
Applicant
And
| JOSEPH BRADLEY DOYLE |
Respondent
REASONS FOR JUDGMENT
The application
Application is made for Orders preventing the Respondent Father from leaving the Commonwealth of Australia and placing the Respondent Father on the watch list.
The evidence
I have had regard to the Affidavit of Maria Jukes, the Applicant Mother, sworn 21 January 2005 and on which she relies in support of her Application. The Affidavit recites a history of the brief relationship that she had with the Respondent Father that the Applicant Mother believes gave rise to the birth of the child Patrick Jukes, born
5 December 2004 (“the Child”), in England.
At the time the Child was born the Applicant Mother was married to another person although the Applicant Mother deposes in her Affidavit that at the time of conception the only person with whom she had sexual relations was the Respondent Father.
The Applicant Mother relies on the course of conduct embarked upon by the Respondent Father of divesting himself of 5 properties in the United Kingdom in respect of which he was the registered proprietor during the course of the pregnancy.
The Applicant Mother further relies on evidence of the attitude exhibited by the Respondent Father to his parental responsibilities contained in conversations that the Applicant Mother said she had with the Respondent Father over time. For example, paragraph 28:
You're going to have to bring up that child alone. If you have it it's your pet. I don't want anything to do with it. It's your choice. This is the way it is. It will probably be a retard anyway.
The Applicant Mother submits that the divesting of his assets by the Respondent Father and his subsequent travelling to Australia is evidence of the Respondent Father intending to place himself beyond the ability of the Applicant Mother to make any application for maintenance in respect of the Child. The Applicant Mother submits that the Respondent Father, whose parents reside in Australia, may leave the country. However, I am satisfied, having regard to the Affidavit of the process server, the Respondent Father is presently living in Australia with his parents.
I note that when the Respondent Father left England it was not to a country where there was no opportunity of pursuing him. Rather, the Respondent Father came to Australia where plainly an Application can be brought, made and enforced against him.
It is not to be forgotten that in the present circumstances there is no presumption of paternity nor declaration in favour of paternity. However, I do have regard to the fact that the unchallenged evidence of the Applicant Mother before the Court would seem to indicate paternity and a declaration may ultimately be made.
There is no history of a relationship that would otherwise entitle the Applicant Mother to any interest in any of the property of the Respondent Father on her own account and, indeed, nor does the Applicant Mother suggest otherwise.
The law
The Applicant Mother's Application is brought pursuant to s.68B(2) of the Family Law Act that allows the Court to make orders that it considers appropriate for the welfare of the child including an injunction where it appears to the Court it is just or convenient to do so.
However, the Court must be satisfied before granting such an injunction that there exists an objective intention to dispose of property. As stated by the Full Court of the Family Court in Waugh & Waugh [2000] FamCA 1183, the fundamental consideration is:
“whether there was any evidence of any intention by the husband to dispose of any assets pursuant to any scheme to defeat any judgment which in the wife might obtain in the substantive proceedings, or whether he merely wished to continue to trade, as he always had done, prior to and since the separation of the parties”
Findings
In relation to the consideration of what is just, I have regard to the fact that the Respondent Father was served with the documents at 11 pm last night. Service occurred in circumstances where the documents were given to a parent of the Respondent Father who then threw the documents on the road. Whilst I have accepted that evidence as sufficient evidence of knowledge of the Respondent Father of the proceedings to enable me to proceed to hear the matter on an undefended basis today, in considering what is just I am mindful of the lack of any reasonable opportunity to the Respondent Father to seek to oppose the application.
The Applicant Mother submits that the balance of convenience weighs in favour of the hardship upon the Applicant Mother to pursue orders for maintenance in the event that the Respondent Father was to leave Australia prior to the making of any order as against the inconvenience to the Respondent Father of being prevented from leaving Australia pending determination of any application for maintenance.
The Applicant Mother’s concern is that the Respondent Father, upon being made aware of his responsibilities, will leave Australia in order to avoid his obligations unless the Orders sought by the Applicant Mother restraining him from leaving are made. The Applicant Mother appears to rely on the divesting of property in the United Kingdom by the Respondent Husband and his subsequent return to Australia as the grounds for her concerns.
It is a very significant matter to impede the freedom of a citizen to come and go freely from his homeland. I am not satisfied that there is any cogent evidence of an intention of the Respondent Father to place himself beyond the jurisdiction of the Court.
Further, I am not persuaded on the evidence before me that it is appropriate, without some reasonable opportunity for the Respondent Father to participate, to proceed to make the orders sought, based on the evidence before me. An opportunity was offered to the Applicant Mother to stand over her Application pending service, however, she refused this offer and sought to proceed with her Application today.
Accordingly, the Application is refused.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S Riddle
Date: 8 March 2005
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