Bale-Sutch and Bale-Sutch (No 4)

[2010] FamCA 661

FAMILY COURT OF AUSTRALIA

BALE-SUTCH & BALE-SUTCH (NO. 4) [2010] FamCA 661

FAMILY LAW – PRACTICE AND PROCEDURE – Substituted service

Family Law Act 1975 (Cth)

APPLICANT: Ms Bale-Sutch

RESPONDENT: Mr Bale-Sutch

FILE NUMBER: MLC 3800 of 2007

DATE DELIVERED: 13 July 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 13 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bear

SOLICITOR FOR THE APPLICANT: Wisewould Mahony Lawyers

Orders

1. That the husband be forthwith served with the application of the wife filed 17 June 2010 by delivery by ordinary post to Mr Z of Z Realty.

2. That in addition to the application filed 17 June 2010, the husband be served in the same way with the affidavit of the wife filed 17 June 2010 and a copy of these orders.

3. That Mr Z as the agent of the husband, forthwith advise the solicitors for the wife in writing the following:

   (a)that the husband has been sent the said documents referred to in paragraphs 1 and 2 hereof;

   (b)the details of the bank account into which the rental (if any) from the real property at K is being paid and in whose name that account stands.

4. That all outstanding applications of the wife are adjourned to the Judicial Duty List on 9 August 2010 at 10.00am.

5. Reserve the costs of this day.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3800 of 2007

MS BALE-SUTCH

Applicant

And

MR BALE-SUTCH

Respondent

REASONS FOR JUDGMENT

1. This is an application by Ms Bale-Sutch for an order for substituted service.  On 18 February 2009, I delivered reasons for judgment and made orders in respect of parenting and property matters.  The relevant parts of the property order were that the home in K be forthwith placed on the market for sale at a price of not less than $400,000, and that, if it had not been sold by 1 June, unless the parties agreed otherwise, the terms and conditions of any sale be fixed by the court.  Almost 18 months has gone by, and it would appear that the matter has not progressed.  Suffice to say that Bale-Sutch has control, if not occupation, of the property.

2. On 17 June, the wife filed an application seeking, effectively, to have control of the sale, but that application could not be served on Mr Bale-Sutch, because it is currently thought that he is somewhere in England.  There is probably a reasonable basis to not have a lot of knowledge about what Mr Bale-Sutch is doing, because, in proceedings subsequent to those to which I have referred, I suspended all time between Mr Bale-Sutch and the two children of the marriage.  

3. The parties live a significant distance apart in Victoria and, thus, the wife’s only contact, apparently, is through the estate agent to whom Mr Bale-Sutch has given the property.  The wife refers in her affidavit to the fact that Z Realty are the agents, and specifically Mr Z.

4. Interestingly, notwithstanding the order that I made said the property was to be placed on that market at not less than $400,000, the agent has advertised it in a brochure attached to the wife’s affidavit at $360,000.  Notwithstanding that, the property has still not be sold.  Mr Bear, on behalf of the wife, has indicated that his inquiries from Mr Z indicate that, apart from Mr Bale-Sutch being in England, the property is now rented to a publican, and the rent is being paid into a bank account which Mr Z declined to disclose.

5. The whole purpose of the orders in February 2009 was to give effect to section 81 of the Act to bring to an end all outstanding proceedings between the parties.  With the current impasse, that is not going to occur.  Reading the affidavit of the wife, filed 17 June 2010, one can conclude – she says there is enough on that basis – there is sufficient material for me to make an order for substituted service, but also to enable the wife to be in a position so that she can ascertain what is actually happening to what effectively is her money, or part of it.

6. In those circumstances, I propose to make an order for substituted service on the basis that I am satisfied that these documents will come to the attention of the husband.  I will adjourn the matter to the next judicial duty list on 9 August which will enable the husband to participate if he so wishes.  Normally I would make an order for him to file material in response to that of the wife, but this is an enforcement application, and, as such, he does not need to do anything.  If he does not attend on the next day, or provide some plausible reason why he does not wish to participate, then the court will be at liberty to conclude that he does not wish to dispute the orders pursued by the wife.

7. The orders that she otherwise seeks are that she have the control of the sale, including the appointment of the agent, and, if necessary, the exercise of the powers under section 106A of the Act for the purposes of having the registrar sign any necessary documents. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  3 August 2010