Jukes v Doyle - [2005] FamCA 39

[2005] FamCA 39

JFJM

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT PARRAMATTA

Appeal No. EA 7 of 2005
File No. PAM 300 of 2005

IN THE MATTER OF:

Appellant/Mother

- and -

JBD

Respondent/Father

REASONS FOR JUDGMENT

BEFORE:  JUSTICE I R COLEMAN
HEARD:  2^nd day of February 2005
ORDERS MADE:                2^nd day of February 2005
JUDGMENT:  9^th day of February 2005

APPEARANCES: Ms Vincent, solicitor (instructed by Watts McCray Lawyers, DX 11517 Sydney Downtown), appeared on behalf of the appellant mother.

There being no appearance on behalf of the respondent father.

Name of Appeal MJ & JMD

Appeal Number EA 7 of 2005

Date of Appeal Hearing 2^nd day of February 2005

Date of Order 2^nd day of February 2005

Date of Judgment 9^th day of February 2005

Bench Coleman J

Catchwords: Appeal against dismissal of application for interlocutory injunction restraining the father from leaving the jurisdiction in proceedings brought by the mother for parenting orders and child maintenance.
Discussion of whether leave to appeal needed with respect to interlocutory decree, and of term “in relation to” in Regulation 15A of the Family Law Regulations 1984 – leave not required.
Consideration of “justice” and “convenience” with respect to sections of the Family Law Act 1975 (Cth) conferring jurisdiction to grant interlocutory injunctive relief, namely sections 68B(2) and 114(3) – Waugh and Waugh (2000) FLC ¶93-052 followed – the learned Federal Magistrate not found to have erred in refusing to grant such relief.

Appeal dismissed

By Notice of Appeal filed 31 January 2005 MJ (hereinafter referred to as “the mother”) appealed against certain orders made by Federal Magistrate Emmett on 28 January 2005. On 1 February 2005 the mother filed an application seeking:-
“1. That the Applicant be granted leave to lodge an Appeal in relation to the interlocutory orders made by Federal Magistrate Emmet on 28 January 2005.
2. That the Appeal be listed on an urgent basis.”
The order which is relevant for present purposes provided that the “Application in accordance with Minutes of Proposed Orders, a copy of which is annexed and marked “A”, is dismissed”. It is apparent from “A” that the orders which were then sought by the mother were: -
“1.That the Respondent be restrained from leaving the Commonwealth of Australia.
2.A consequential order that the Australian Federal Police place the Respondent’s name on the airport watch list in force at all points of arrival and departure in the Commonwealth of Australia and maintain the Respondent’s name on the watch list.
3.A further consequential order that, pursuant to Section 67ZD, the Respondent surrender forthwith to the Registrar of this Court all of his current passports.
4.That the Applicant cause to have her Application, Affidavit and Financial Statement served upon the Respondent within 3 days of the date of these orders.
5.That this matter be listed for Hearing within 7 days of the date of these orders.
6.That each party be at liberty to…

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 Jukes v Doyle

Details

AGLC: Jukes v Doyle [2005] FamCA 39
Case: [2005] FamCA 39
Decision Date: 9 February 2005

CaseChat Overview and Summary

In *Jukes v Doyle*, heard before Coleman J in the Supreme Court of Queensland, the applicant sought to set aside a default judgment entered against him. The respondent had commenced proceedings against the applicant for recovery of a debt. The applicant failed to file a defence within the prescribed time, leading to the entry of default judgment. The applicant subsequently applied to have this judgment set aside.

The primary legal issue before the Court was whether the applicant had established sufficient grounds to warrant setting aside the default judgment. This involved considering whether the applicant had a meritorious defence to the claim and whether he had provided a satisfactory explanation for his failure to file a defence within the time limit. The Court also had to determine whether it was in the interests of justice to set aside the judgment.

Coleman J applied the principles governing applications to set aside default judgments, which require the applicant to demonstrate both a defence on the merits and an explanation for the delay. The Court considered the applicant's affidavit evidence, which outlined his reasons for not filing a defence, and assessed the arguable nature of the defence he sought to raise. The Court weighed these factors against the prejudice to the respondent and the need to uphold the finality of judgments.

The Court ultimately dismissed the application to set aside the default judgment, finding that the applicant had not provided a sufficiently compelling explanation for his failure to file a defence, nor had he demonstrated a defence with a high degree of merit.

Orders