Yannes & Judkins - [2019] FCCA 1656

FEDERAL CIRCUIT COURT OF AUSTRALIA

YANNES & JUDKINS

[2019] FCCA 1656

Catchwords:
FAMILY LAW – High Court and Federal Court – Federal Circuit Court – Procedure – Other matters – orders for party to appear in person.

FAMILY LAW – High Court and Federal Court – Federal Circuit Court – Procedure – Other matters – warrants for arrest.

Legislation:

Family Law Act 1975 (Cth), ss.65Q(2), 68B, 68C, 114, 114AA, Pts.VII, VIII, VIIIAB, XIIIA, div.13A
Federal Circuit Court Rules 2001, rr.4.03, 4.03(1), 10.01(3), 10.01(3)(s), 13.03A(2)(b), 13.03B, 13.03B(2), 15A.16(1), 19.01(1), 19.01(1)(a), 19.01(2), 19.01(3), 19.02, 19.02(5), 22.02(1), 24.03(1), 24.04(1), 25B.01, 25B.02(1), 25B.03, 25B.04, 25B.73, 29.06, Pts.10, 24, 25B, Ch.3

Cases cited:

Adcock, In re (1890) 24 SALR 3
Brown v Lizars (1905) 2 CLR 837
Fardon v Attorney-General (Qld) (2004) 223 CLR 575
Halmi v Minister for Immigration and Multicultural Affairs (1998) 79 FCR 261
Kable v Director of Public Prosecutions (DPP) (NSW) (1996) 189 CLR 51
Michael & Michael [2011] FMCAfam 552
Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42
ReBolton; Ex parte Beane (1987) 162 CLR 514
South Australia v O’Shea (1987) 163 CLR 378
Thomas v Mowbray (2007) 233 CLR 307
Walsh, Ex parte [1942] ALR 359
Weetra, In re (1978) 18 SASR 321

Applicant:

MS YANNES

Respondent:

MR JUDKINS

File Number:

BRC 10431 of 2018

Judgment of:

Judge Jarrett

Hearing date:

8 March 2019

Date of Last Submission:

8 March 2019

Delivered at:

Brisbane

Delivered on:

17 June 2019

REPRESENTATION

Solicitors for the Applicant:

Richardson McGhie

No appearance by the Respondent

ORDERS

The application for the issue of a warrant for the arrest of the respondent is refused;
The application is adjourned to 16 September, 2019 at 9:30am for directions.

IT IS NOTED that publication of this judgment under the pseudonym Yannes & Judkins is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 10431 of 2018

MS YANNES

Applicant

And

MR JUDKINS

Respondent

REASONS FOR JUDGMENT

In the absence of a statutory provision to the contrary, a person in Australia who has not breached Australian law is entitled to his freedom.
per Gaudron J in Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 547

These proceedings concern property adjustment. The applicant commenced them on 11 September, 2018. Despite being regularly served with the proceedings, the respondent has not filed a response or an address for service. Nor has he participated in the proceedings in any other way.
The proceedings came before the Court on its first court date on 27 November, 2018. At that time, a judge of this Court made the following orders:
1.That the Respondent file and serve a Response, Financial Statement/Notice of Risk (if applicable) and any supporting affidavit material that he intends to rely upon within twenty –eight (28) days of the date of this Order.
2.That the Respondent is to appear personally before the Court on the next Court date.
The orders…

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 Yannes & Judkins

Details

AGLC: Yannes & Judkins [2019] FCCA 1656
Case: [2019] FCCA 1656
Decision Date: 17 June 2019

CaseChat Overview and Summary

In the Federal Circuit Court, Judge Jarrett considered an application for the issue of a warrant for the arrest of the respondent. The specific nature of the underlying dispute between the parties, Yannes and Judkins, was not detailed in the provided text, but the application concerned the respondent's personal appearance before the court.

The central legal issue before the court was whether the circumstances warranted the extraordinary measure of issuing a warrant for the arrest of the respondent. This required the court to assess the necessity and proportionality of such an order in the context of family law proceedings and the respondent's obligation to appear.

Judge Jarrett refused the application for the arrest warrant. While the precise reasoning is not elaborated, the decision indicates that the threshold for authorising an arrest warrant in these circumstances was not met. The court instead adjourned the matter for further directions, suggesting that alternative measures or further information would be considered to ensure the respondent's compliance or participation in the proceedings.

Orders

Orders of the court

The application for the issue of a warrant for the arrest of the respondent is refused;

The application is adjourned to 16 September, 2019 at 9:30am for directions.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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