Yannes & Judkins
[2019] FCCA 1656
•17 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| YANNES & JUDKINS | [2019] FCCA 1656 |
| Catchwords: 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 |
| Cases cited: Adcock, In re (1890) 24 SALR 3 |
| 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 also carried a notation to the following effect:
A.That in the event the Respondent fails to appear in person at Court on 9 March 2019, the Court may issue a warrant for his arrest and production before the Court.
The application came before me on 9 March, 2019. The applicant appeared by a solicitor but there was no appearance for the respondent. The applicant applied for the issue of a warrant for the arrest of the respondent consistent with the notation to the order made on 27 November, 2018.
The application for the issue of the warrant is refused. These are my reasons for that refusal.
As the passage at the commencement of these reasons underscores, a person in Australia who has not breached Australian law is entitled to his or her freedom. A citizen has a general right to liberty unless there is a proper legal basis for taking away that right: Brown v Lizars (1905) 2 CLR 837 at 851 - 852, 861, 867 - 868. The fundamental right to liberty operates in respect of detention by the executive and also in respect of judicial detention. Cases concerning detention by the executive include Re Bolton; ex parte Beane (above) and Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 (especially at 103-105). Cases concerning judicial detention include Fardon v Attorney-General (Qld) (2004) 223 CLR 575, Kable v Director of Public Prosecutions (DPP) (NSW) (1996) 189 CLR 51 and Thomas v Mowbray (2007) 233 CLR 307.
Judges are under a particular obligation to scrutinise any detention of a person with special care: Walsh, Ex parte [1942] ALR 359 at [360] and to give a person the benefit of the doubt if doubt exists as to the legality of the detention in question: Inre Weetra (1978) 18 SASR 321. Where the liberty of the subject is at stake, near enough is not good enough: In re Weetra at [328]. In Re Adcock (1890) 24 SALR 3 at [10] Way CJ said:
We are not to strain the law against the liberty of the subject … I hope that I shall strive never to be recreant to the great traditions of the English Bench in maintaining to the upmost of its ability every provision of the law guarding the liberty of the subject.
And Wilcox J in Halmi v Minister for Immigration and Multicultural Affairs (1998) 79 FCR 261:
No legal principle is more precious to free society than that which says a person may be deprived of liberty only pursuant to express and clear statutory authority.
See also South Australia v O’Shea (1987) 163 CLR 378. There are many other cases to the same effect.
Unless the detention (and arrest is a form of detention) of a person is justified by some aspect of the common law or some statutory enactment, the detention (or arrest) of that person will be unlawful. Thus, the focus of the relevant enquiry in the present case is the identification of any power that might be exercised by this Court to lawfully authorise the arrest or detention of the respondent.
The present application is within the jurisdiction conferred on the Court by the Family Law Act 1975 (Cth). That Act and the powers it confers upon the Court are an apt starting point. The Act provides for the issue of a warrant for the arrest of a person and their detention in certain circumstances. The following sections of the Act expressly provide for the arrest of a person:
a)s.65Q(2) – a warrant for the arrest of a person might be issued where there is an application for a contravention of parenting orders before the Court and the Court is satisfied that the issue of the warrant is necessary to ensure the alleged offender will attend before the Court to be dealt with under the contravention provisions;
b)s.68C – a person might be arrested without warrant if there is an injunction in force under s.68B of the Act for the personal protection of a person and a police officer believes on reasonable grounds that the person against whom the injunction is directed has breached that injunction; and
c)s.114AA – a warrant for the arrest of a person in respect of whom there is an injunction enforced under s.114 of the Act for the personal protection of another person where a police officer believes on reasonable grounds that the person against whom the injunction is directed has, since the injunction was granted, breached the injunction.
Beyond those sections and leaving aside the provisions relating to the imposition of imprisonment as a sanction for contravening orders or being found guilty of a contempt, no other sections of the Act provide for the issue of a warrant for the arrest of a party to proceedings.
The next source of power might be the Federal Circuit Court Rules2001 (Cth). The Rules sets out a number of instances in which a warrant for the arrest of a person might be issued. The first occurs in FCCR 15A.16(1). That sub-rule provides for the issue of a warrant for the arrest of a person if the person fails, without lawful excuse, to comply with a subpoena. It is not relevant here.
The next example appears in FCCR 19.01(1). That sub-rule provides that in circumstances where it appears to the Court that a person is guilty of contempt in the face of or in the hearing of the Court the Court might:
a)direct that the person might attend before the Court; or
b)issue a warrant for the person’s arrest.
Upon the person’s attendance at court, a court must then apply the procedures set out in FCCR 19.01(2). Sub-rule 19.01(3) expressly authorises the detention of such a person “until the charge [of contempt] is determined”. But these rules are of no relevance here.
Rule 19.02 deals with contempt other than in the face or hearing of the Court. Sub-rule 19.02(5) provides that the Court might issue a warrant for the arrest and detention of a respondent to such an application for contempt if “the Court considers that the person is likely to leave the jurisdiction of the Court”. Again, this rule is not presently relevant.
The next instance in the Rules that authorises the issue of a warrant for the arrest of a person occurs in r.25B.03. That rule provides:
25B.03 Failure of respondent to attend
If a respondent fails to attend the hearing of the application in person or by a lawyer, the Court may:
(a) determine the proceeding; or
(b) issue a warrant for the respondent’s arrest to bring the respondent before a court; or
(c) adjourn the application.
It will be observed that a warrant for the respondent’s arrest or to bring the respondent before a court can be issued if the respondent fails to attend “the hearing of the application”. That phrase is a reference to the application that is dealt with in FCCR 25B.02(1) – that is to say, an application for an order of the type set out in FCCR 25B.01, namely:
a)an order under Division 13A of Part VII of the Family Law Act (contravention of a child order); or
b)under Part XIIIA of the Family Law Act (contraventions of orders that do not affect children).
Thus, the power to issue a warrant for the respondent’s arrest to bring a respondent before a court set out in FCCR 25B.03 applies to respondents who do not appear in answer to an application for contravention properly served on them.
Division 25B.04 in Part 25B of the Rules deals with the issue of warrants for arrest in the circumstances set out in FCCR 25B.73. That rule is in the following terms:
25B.73 Application for warrant
(1) A party may apply, without notice, for a warrant to be issued for the arrest of a respondent if:
(a) the respondent is required to attend court on being served with:
(i) an application for an enforcement hearing; or
(ii) a subpoena or order directing the respondent to attend court; or
(iii) an application for an order that a person be punished for contempt of court; and
(b) the respondent does not attend at court on the date fixed for attendance.
(2) If a warrant is issued, it must have attached to it a copy of the application, subpoena or order mentioned in paragraph (1)(a).
This rule refers to a warrant for the arrest of a respondent being issued where there is a subpoena or order directing the respondent to attend court. That however, is clearly a reference to the subpoena rules to which I have earlier referred and insofar as it refers to an “order”, it is a reference to FCCR 19.01(1)(a) which expressly empowers the Court to direct that a person attend before the Court in the circumstances to which that rule applies.
Rule 29.06 also provides for the Court to issue a warrant for the arrest of a person if the Court has issued a subpoena “or made an order that a person attend court”. The rule is in the following form:
29.06 Failure to attend Court in response to subpoena or order
(1) If the Court has issued a subpoena or made an order that a person attend Court:
(a) to give evidence; or
(b) to produce any document or thing; or
(c) to answer a charge of contempt; or
(d) for any other reason;
and the person fails to attend, a party may apply to the Court for an order that a warrant, in accordance with the approved form, issue to the Sheriff, or another person named in the warrant:
(e) for the person’s arrest and detention in custody until the person is brought before the Court; and
(f) for the production of the person before the Court.
(2) Subrule (1) does not limit the power of the court to punish for contempt.
(3) This rule does not apply to an order or direction of the Court requiring a party to comply with these Rules.
However, FCCR 29.06 appears in Chapter 3 of the Rules which is headed “Proceedings other than family law or child support”.
The present proceedings are for property adjustment pursuant to Part VIIIAB of the Family Law Act 1975. They are not criminal proceedings. The respondent is not a defendant to a charge brought against him by the State for a breach of the criminal law or a quasi-criminal law. He is not accused of committing any offence, nor any contempt of court.
An affidavit of service filed on 26 November, 2018 shows that the respondent was served with the application and supporting documents used by the applicant to commence these proceedings, on 26 September, 2018. He was personally served and he signed an acknowledgment of service. The applicant has regularly invoked the jurisdiction of this Court to make orders for property adjustment between the parties pursuant to Part VIIIAB of the Act.
Once served with the proceedings, however, the respondent is not obliged to participate in them. There is nothing to which I was taken, or which I can find myself, which obliges a respondent to proceedings of the type presently before me, to do anything in the proceedings. There are rules contained within the Federal Circuit Court Rules2001 which regulate the way in which a respondent should participate in the proceedings if he or she chooses to do so, but there is nothing in the Rules which obliges him to actually participate in them.
The text of some relevant rules bears out that proposition. Rule 4.03 provides for the initial steps to be undertaken by a respondent should a respondent wish to engage in the proceedings. That rule is in the following terms:
4.03 Response to application
(1) A respondent to an application who seeks to do any of the following must file a response in accordance with the approved form:
(a) indicate consent to an order sought by the applicant;
(b) ask the Court to make another order;
(c) ask the Court to dismiss the application;
(d) seek orders in a matter other than the matter set out in the application;
(e) make a cross‑claim against the applicant, or another party.
(2) A response must precisely and briefly state any orders sought and (if the proceeding is a general federal law proceeding) the basis on which the orders are sought.
(3) A response must be filed and served within 28 days of service of the application to which it relates.
It will be observed that FCCR 4.03(1) requires (through the use of the mandatory word must) a respondent to file a response should he or she wish to do any of the matters set out in that sub-rule. However, if a respondent simply does not wish to participate in the proceedings, he or she is not obliged to file a response, or any other document. Indeed, a respondent might even agree with the orders sought by the applicant in the initiating application but for one reason or another may not wish to indicate consent to those orders. In those circumstances he or she is not obliged to do anything.
By FCCR 13.03A(2)(b), if a respondent does not satisfy the applicant’s claim or fails to:
(i) give an address for service before the time for the respondent to give an address has expired; or
(ii) file a response before the time for the respondent to file a response has expired; or
(iii) comply with an order of the Court in the proceeding; or
(iv) file and serve a document required under these Rules; or
(v) produce a document as required by Part 14; or
(vi) do any act required to be done by these Rules; or
(vii) defend the proceeding with due diligence.
the respondent will be in default for the purposes of the Rules. Upon a finding that the respondent is in default, the powers set out in FCCR 13.03B of the Rules are engaged and the Court might make one or other of the orders set out in FCCR 13.03B(2).
For an applicant in a property adjustment application such as the present, proceeding by way of default can sometimes be difficult because the nature and extent of the parties’ property and liabilities may not be fully known. It is sometimes said, therefore, that it is necessary to secure the attendance of the respondent and their participation in the proceedings so as to enable there to be “full and frank financial disclosure”.
Part 24 of the Federal Circuit Court Rules deals with applications concerning financial matters under the Family Law Act 1975. By that Part, the obligation to file a financial statement is only cast upon a respondent “who files a response” see: FCCR 22.02(1). The other obligations cast upon the parties to financial proceedings by Part 24 of the Rules only apply to parties who are required to file a financial statement or affidavit of financial circumstances: see FCCR 24.03(1); 24.04(1). Those obligations are only engaged where a respondent has filed a response. As I have indicated earlier, a respondent who does not wish to participate in the proceedings, is not obliged to file a response and the duty to provide full and frank disclosure of their financial position is not enlivened.
The failure of a respondent to participate in proceedings such as the present can be inconvenient for an applicant who must nonetheless prove all of the relevant matters upon which he or she seeks the relief claimed in the proceedings. Those matters must be proved in the usual way through admissible evidence: Michael & Michael [2011] FMCAfam 552. There are procedures available under the Rules to facilitate that proof.
It was said for the applicant that the order made on 27 November, 2018 for the respondent “to appear personally before the Court” was made to facilitate the applicant establishing her claims and right to relief in the proceedings. But did the Court have power to make such an order? In my view, the Court did not. There is nothing in the Rules which expressly provides the Court with power to order the attendance of a party who has not otherwise participated in the proceedings. Part 10 of the Rules provides for the conduct of and what might be ordered at, the first court date in the proceedings. Rule 10.01(3) provides a long list of matters that might be the subject of an order or direction by a judge on a first court date, but none of them expressly authorises an order compelling the personal attendance of a party who has not chosen to participate in the proceedings. At the end of that long list (r.10.01(3)(s)) is a general provision that provides that the Court might make orders or directions in relation to any “other matter that the Court or registrar considers appropriate”. However, in my view, that power is inapt to authorise the Court to order the personal attendance of a party who has chosen not to participate in the proceedings at all.
Ordering a person to attend Court in a non-criminal matter is a significant step. The ordering of a person to attend Court personally in circumstances where they have not participated in proceedings after having been validly served with the initiating process, involves an interference with their liberty, which should only be countenanced by express legislative authority. In my view, no such express authority exists in the Federal Circuit Court Rules or the Family Law Act. Nor does it exist in the Family Law Rules2004 or the Federal Court Rules2011 which might apply where the Rules of this Court are insufficient.
The warrant of arrest in this case was sought consequent upon the respondent’s failure to comply with the order that he appear personally in the proceedings. For the reasons I have given, I am of the view that that order was made without power. In any event, even if that is wrong, no power to issue a warrant for the arrest or detention of the respondent exists in the circumstances of this case.
The application for the issue of a warrant for the arrest of the respondent is refused.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Jarrett
Date: 17 June 2019
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