Jukes v Doyle

[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:

MJ

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 relist the matter on 48 hours notice.
7.That the orders herein be made on an ex-parte basis.”
By virtue of Order 2 made by the learned Federal Magistrate, paragraph 7 of the Minutes of Proposed Orders did not assume significance. Paragraphs 4, 5 and 6 of the Proposed Minutes of Order were effectively granted by the learned Federal Magistrate (Orders 3 and 4), albeit not in those precise terms.
1. The matter of significance sought to be raised before this Court was thus her Honour’s refusal to grant orders restraining JBD, the respondent to the proceedings, from leaving the jurisdiction.
2. Although served with the Notice of Appeal, the father did not appear before this Court.
THE NEED FOR LEAVE TO APPEAL
1. Section 94AA(2A) of the Family Law Act 1975 (Cth) (“the Act”) provides that:-
“An appeal does not lie to the Family Court from a prescribed decree of the Federal Magistrates Court, except by leave of the Family Court.”
1. Regulation 15A(2) of the Family Law Regulations 1984 provides that:-
“For subsection 94AA (2A) of the Act, a decree of the kind mentioned in subsection 94AAA (1) of the Act that is an interlocutory decree (other than a decree in relation to a child welfare matter) is prescribed.”
1. Regulation 15A(3) of the Regulations provides that:
“In this regulation:
child welfare matter means a matter relating to:
(a) the person or persons with whom a child is to live; or
(b) contact between a child and another person or persons; or
(c) any other aspect of parental responsibility, within the meaning of Part VII of the Act, for a child.”
1. There is little scope for doubt that Order 1 of the orders sought by the mother before the learned Federal Magistrate was “interlocutory” by nature. The substantive proceedings instituted in the Federal Magistrates Court by the mother concerned a child who, the mother claimed, was a child of the relationship between herself and the father, the respondent in the proceedings. The interlocutory orders sought by the mother clearly related to the mother’s claims for financial relief for the child pursuant to s 66G of the Act. Whilst the matter is not necessarily clear beyond doubt, the Court inclines to the view that financial support of a child has sufficient nexus with “child welfare” to bring the mother’s application before the learned Federal Magistrate within the exception provided in reg. 15A(2).
2. Further support for this view can be gained from the fact that the mother essentially sought substantive orders pursuant to a number of provisions of Part VII of the Act, the title to which part is “Children”. Whilst the distinction may be one without a difference, given the tests which govern an appeal as of right and an application for leave to appeal, the Court approaches this matter on the basis that leave is not required.
PRELIMINARY OBSERVATIONS
1. As is apparent from her orders, the learned Federal Magistrate adjourned the substantive proceedings brought by the mother to 3 February, less than a week after the Interlocutory Application, “for hearing”. Notwithstanding that, and the matters to which reference will later be made, the appeal was filed and, at the insistence of solicitors representing the mother, urgently listed before the Court. No transcript of the proceedings before the learned Federal Magistrate has been supplied to this Court on the hearing of the appeal, nor were any reasons for her Honour’s orders or evidence of any attempt to obtain a copy of such reasons.
2. Whilst there may well be cases where it is appropriate for appeals from interlocutory orders of Federal Magistrates to be the subject of appeal to this Court, and for such appeals to be heard with expedition, the circumstances of this appeal render the approach adopted by those representing the mother in this case little short of an abuse of the processes of this Court.
BACKGROUND
1. Some background to the appeal is appropriate. On 24 January 2005 the mother filed an application in the Federal Magistrates Court seeking a variety of interlocutory and final orders. The orders sought provided:-
Final Orders
Paternity
Maintenance
Parenting
* The use of the “₤” symbol means that these orders are expressed in United Kingdom Pounds Sterling.
Interim Orders
PENDING FURTHER ORDER
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 orders numbered 1-3 herein be made on an ex-parte basis.
If Paternity is in issue:
5.
a.That the Respondent attend and do all things as are necessary to attend upon the rooms of Silbase Scientific Services at Ryde for the purpose of the conduct of undertaking a parentage testing procedure pursuant to Section 69W of the Family Law Act and a report be prepared for use as evidence in these proceedings in respect of such procedure.
b.That a solicitor of the firm of solicitors, Watts McCray Lawyers, be present at the times of such testing of the Respondent.
6.That the Applicant pay the costs of such procedure but if the test establishes on the balance of probabilities, the Respondent is the father of [PJ] then the Respondent reimburse such costs to the Applicant within 7 days of the results of such tests.
Property Dealings
7.Pending compliance of the primary maintenance order and costs order, that pursuant to s106B(1) the court set aside the Respondent’s transfer of the property situated at and known as 29A Thimblemill Road, Smethick, Warley, England, Title number WM640563, to [MLD] on 11 October 2004.
8.Pending compliance of the primary maintenance order and costs order, that the Respondent be restrained from disposing of monies or any other significant assets other than for the purposes of day to day living or without leave of the court.
9.That the Respondent file and serve a Form 13 Financial Statement within 14 days.
Costs
10.That the Respondent pay the Applicant’s costs of and incidental to these proceedings.
1. In support of the application an affidavit and financial statement of the mother was filed. The mother has at all material times, at least so far as the evidence she has presented in the Federal Magistrates Court reveals, been a resident of the United Kingdom. The child the subject of the proceedings was born in the United Kingdom, lives there and will do so in the future.
2. The father is an Australian citizen but, on the mother’s own evidence, has lived in the United Kingdom for the bulk of the past several years, including the majority of periods during which he and the mother are alleged to have had a relationship.
3. The mother alleges, with some justification having regard to real property searches conducted on her behalf by her English lawyers, that the father acquired, and in some instances has hastily disposed of or attempted to dispose of, real estate holdings in the United Kingdom in circumstances arousing suspicion. There is no evidence of the father having assets within the Commonwealth of Australia.
4. The mother’s evidence suggests that the father’s presence in Australia is temporary and, it could reasonably be inferred, primarily for the purpose of visiting relatives who reside in this country. Whilst arguments with respect to the appropriate forum in which the mother’s claims should be agitated may arise in the future, this Court has jurisdiction, albeit tenuous, to entertain the mother’s application and power to make the orders sought, albeit a number of the orders sought by the mother may well, if granted, require further proceedings in the United Kingdom in order for such orders to be recognised and/or enforced. The Court proceeds however on the basis that no question arises as to the learned Federal Magistrate having had jurisdiction to entertain the mother’s application and power to grant the relief she sought.
THE HEARING BEFORE THE LEARNED FEDERAL MAGISTRATE

18.Notwithstanding that, by her originating application, the mother sought relief, both by way of interlocutory and final order, restraining the father from “disposing of any monies or any other significant assets other than for the purpose of day to day living with or without leave of the court”, the document presented to the learned Federal Magistrate on 28 January 2005 by Counsel then appearing for the mother and headed “Minutes of Proposed Orders”, did not include orders in those terms, preferring to seek only that the father be restrained from leaving the Commonwealth of Australia and orders consequential to such order.
19.The appellant has not provided a transcript of the proceedings before the learned Federal Magistrate, but it can easily be inferred in the circumstances that the document prepared by the mother’s Counsel and headed “Minutes of Proposed Orders” were the only orders which the mother sought on an interlocutory basis on that occasion. On the hearing of the appeal, Counsel appearing for the mother did not suggest anything to the contrary.
20.The Notice of Appeal which was filed appears to have been in a pro-forma precedent giving little clue as to the nature of the mother’s challenge to the learned Federal Magistrate’s Orders.
21.Before this Court, Counsel placed considerable emphasis upon the terms of s 68B of the Act which were asserted to confer the power to grant the relief sought on 28 January 2005. It is apparent from the terms of the section that only s 68B(2) could be sought to be relied upon in the present circumstances. It was submitted, in reliance upon the wording of the terms of the section that the only requirement for the granting of an injunction was that it be “just or convenient to do so” and that, pursuant to s 68B(3), an injunction could be granted “unconditionally or on such terms and conditions as the Court considers appropriate”. Section 68B(2) provides that:-
“(2) A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.”

22.The Court does not agree with the submission made on behalf of the mother. The injunction sought by the mother was not “in relation to a child” but rather in relation to pending proceedings for maintenance albeit the maintenance proceedings were in relation to a child. Even if the section applies, the Court does not accept that the issue of justice and convenience is confined in the manner and to the extent asserted by Counsel for the mother.
23.It is not simply a matter of whether, on balance, an injunction should be granted to restrain, in this case, a person exercising a lawful right to leave the Commonwealth. Justice requires that there be a consideration of the necessity for an injunction to be granted in order to restrain conduct, the consequences of which may result in irreparable harm, in this case financial, for the mother and/or the child.
24.It appears to this Court that the power to grant the injunction sought by the mother was conferred by s 114(3) of the Act. As the wording of the relevant portions of s 114(3) are identical to those of s 68B(2), little turns on this conclusion for present purposes.
25.In Waugh and Waugh (2000) FLC ¶93-052, a case involving an application for interlocutory injunctive relief pursuant to s 114 of the Act, the Full Court suggested that, before such relief should be granted, it was necessary to consider “whether the injunctions … were necessary, and went no further than necessary, to prevent the abuse or frustration of the court’s process in relation to the matter in its jurisdiction, particularly having regard to the nature of [in Waugh’s case] the wife’s claim in the property proceedings”. The Full Court found error on the part of the trial Judge who the Full Court concluded “seems to have started from the position that the wife was entitled to have “proper security in relation to [the husband’s] property”” (per Lindenmayer, Coleman & Brown JJ at 87,810).
26.Although the wording of s 68B(2) and s 114(3) suggests that “just” and “convenient” provide alternative bases for the granting of injunctive relief, the weight of the authorities referred to in, and ratio of, Waugh (supra) suggest otherwise. The Court has no difficulty in following the decision in Waugh (supra) in the present appeal.

DISCUSSION
27.The proceedings in the Federal Magistrates Court involve a claim by a mother who is ordinarily resident in the United Kingdom against a father who has historically, at all times material to the mother’s claim, been a resident of the United Kingdom, and relate to a child born in and living in the United Kingdom. The father’s fortuitous presence within the Commonwealth provides the jurisdictional foundation for the mother’s claim.
28.If accepted, the mother’s evidence establishes that the father has assets in the United Kingdom, some of which he has liquidated in circumstances arousing suspicion, some of which he is seeking to liquidate. The father has filed no evidence in reply. The mother’s allegations can be accepted for present purposes. Knowledge of those actions no doubt prompted the application filed on behalf of the mother in the Federal Magistrates Court on 24 January 2005 to include a claim for injunctive orders against the father with respect to his assets. Seeking such relief was sensible and one might think the relief likely to be granted on an interlocutory basis. Inexplicably, relief in those terms was not sought from the learned Federal Magistrate on 28 January.
29.In order for the appeal to succeed, the appellant must satisfy one of the traditional requirements. In House v King (1936) 55 CLR 499 the High Court said:-
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.” (per Dixon, Evatt and McTiernan JJ at 504-505)

30.It is apparent from the submissions of Counsel for the mother that only the final sentence of the passage cited above could be sought to be relied upon. Nothing to which this Court has been referred provides a basis for concluding that the learned Federal Magistrate erred in exercising her discretion to refuse the application made to her on 28 January 2005.
31.In this Court’s view, for the learned Federal Magistrate to have restrained the father from exercising his lawful right to leave Australia, in the circumstances presented to her may well have been an error warranting the intervention of this Court. Interlocutory injunctive relief in the terms sought by the mother on 28 January 2005 was not only “further than necessary” but would not have been effective to have ensured that the assets of the father remained available until the substantive claims of the mother were determined. No proper basis for granting the relief sought by the mother on 28 January 2005 can be discerned.

CONCLUSION
32.As it has no merit, the mother’s appeal should be, and has been, dismissed.

I certify that the preceding
32 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Court.
A.Coleman
Associate
Date: 09/02/05

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Jukes v Doyle [2005] FamCA 39

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Richardson & Colombo [2021] FedCFamC1A 35

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Richardson & Colombo [2021] FedCFamC1A 35

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[2005] FamCA 39

9 February 2005