Bande and Hectoron

[2009] FamCA 836

FAMILY COURT OF AUSTRALIA

BANDE & HECTORON [2009] FamCA 836

FAMILY LAW – PRACTICE AND PROCEDURE – Substituted service

Family Law Act 1975 (Cth)

APPLICANT: Ms Bande

RESPONDENT: Mr Hectoron

FILE NUMBER: MLC 5139 of 2009

DATE DELIVERED: 4 August 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 4 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr Ingleby

SOLICITOR FOR THE APPLICANT: Kliger Partners

THE RESPONDENT: No appearance

Orders

1. That the applicant have leave to proceed in the absence of notification to the respondent.

2. That the further hearing of the applicant’s application be adjourned to 10.00am on 20 August 2009 in the Judicial Duty List.

3. That until further order, the applicant have sole use and occupation of the property situate at and known as C property.

4. That the applicant’s solicitors serve the respondent with:

   (a)     a copy of these orders;

   (b)    the application filed 12 June 2009;

   (c)    the affidavits filed 14 July 2009 and 31 July 2009;

   (d)    the financial statement filed 12 June 2009

   by the following means:

   i.personal service at Melbourne Airport on the return of Flight … arriving from Hong Kong at 1300 hours on Thursday 13 August 2009;

   ii.by email transmission to Mr N, the respondent’s financial adviser;

   iii.to the respondent’s last known email address;

   iv.to the address of the C property (noting that there is a redirection order for the respondent’s mail); and

   v.through the private investigators in Israel engaged by the applicant.

5. That the applicant’s costs of this day be fixed in the sum of $2600 plus GST a total of $2860 (being counsel’s fees at $1750 and 2 hours for the solicitor at $425) and such sum be reserved to be determined on the return date.

6. That there be liberty to apply on short notice.

AND IT IS DECLARED

1. That pursuant to s 90RD it is declared that a de facto relationship existed between the applicant and the respondent having regard to the matters set out in s 90RD(2)(c).

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5139 of 2009

MS BANDE

Applicant

And

MR HECTORON

Respondent

REASONS FOR JUDGMENT

1. This is an application that was filed by the applicant on 12 June 2009.  It seeks both final orders and interim orders.  I have been asked to deal with the matter on the basis that the respondent has not been served as a result of numerous efforts, to which I shall refer, being unsuccessful.  I am asked to make some holding orders until the matter can be brought back before the court. 

2. This is a matter in which the parties were not married, and it involves financial orders.  The jurisdiction has to be first established.  One of the bases for a court dealing with an application where the parties have lived together for less than two years is where the court is satisfied that either of them has made a substantial contribution towards the property. 

3. The evidence before me is that the property that the parties acquired together was for approximately $3 million, and the applicant has put in $1.7 million of that sum.  It seems to me that, on any view, that could be classified as a substantial contribution, at least for the purposes of the application that I am hearing today. 

4. I have a very comprehensive affidavit by the applicant indicating all of the attempts that have been made to serve the respondent who seems to be in Israel.  Those attempts have included serving upon his financial advisor, using his email address, sending documents to his last known email address and through Australia Post.  Out of frustration she has pursued the respondent through a private investigator.

5. The best information that the applicant has at this stage is that the respondent is returning to Australia later this month.  That information has come from the fact that she accessed his Qantas frequent flyer account. 

6. This is a matter where it is appropriate to grant leave to proceed to seek the orders today without notice to the respondent. 

7. The question then of substituted service needs to be dealt with. Notwithstanding none of the matters to which the applicant has deposed to have borne fruit in having the respondent here today, there does not seem to be any other method by which the documents can be brought to his attention.

8. It seems to me, therefore, that, on the basis that he is probably going to return, those are the best opportunities to bring this application to his attention.  I propose to make an order for substituted service for the return date in respect of those matters. 

9. The evidence upon which the applicant seeks to rely in support of an application for exclusive occupancy of the property is that the respondent vacated the property on 12 May, and has not indicated any desire to return during the interim period.  The relationship, albeit short, was one that was littered with unpleasant circumstances, the details of which I do not need to set out in any detail at all.  They are clearly set out in the affidavit which I have read.

10. This is an application for an injunction, as well as one for protection of the applicant. The provisions of the Family Law Act require only that I exercise my discretion and make such order as is proper. In the circumstances, this seems to me not to prejudice the respondent in any way, having regard to the duration of the order that I am asked to make. In those circumstances, it is appropriate to make an order in terms of paragraph 2 of the application.

I certify that the preceding Ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  10 August 2009