Brucedale and Anor and Vaulks (No 2)

[2020] FamCA 144

FAMILY COURT OF AUSTRALIA

BRUCEDALE AND ANOR & VAULKS (NO. 2) [2020] FamCA 144

FAMILY LAW – PRACTICE AND PROCEDURE – service – circumstances that establish that documents were served upon respondent.

Family Law Rules 2004 (Cth) r 7.02

1st APPLICANT: Ms Brucedale

2nd APPLICANT: Mr Bernati

RESPONDENT: Mr Vaulks

FILE NUMBER: CAC 2216 of 2019

DATE DELIVERED: 4 March 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 4 March 2020

REPRESENTATION

SOLICITOR FOR THE 1ST & 2ND APPLICANTS: Capon & Hubert

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. It is ordered that Mr Vaulks is taken to have been served pursuant to r 7.02 on 23 January 2020 of the documents outlined in this judgment.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Brucedale & Bernati & Vaulks has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 2216 of 2019

Ms Brucedale and Mr Bernati

Applicants

And

Mr Vaulks

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. An issue has arisen as to the service of the biological father of the two children the subject of the application. 

2. The application is firstly for leave to be granted in respect of stepparent adoption and secondly, for adoption using the cross-vested jurisdiction of the Supreme Court of the ACT into this Court. 

3. The initial impediment to progressing the matter was the issue of whether or not the biological father of the two children, Mr Vaulks, was adequately on notice of the proceedings.  That is, whether he had been served with process in this matter. 

4. I have before me the affidavit of a process server, Ms B, who indicated an attempt that was unsuccessful to serve Mr Vaulks.  Those attempts included contact with Mr Vaulks on a particular mobile telephone number wherein Mr Vaulks rejected the notion that he would meet for the documents to be served upon him and suggested that the process server just try another time.  The telephone number is able to be identified as that of Mr Vaulks because of exhibit M1.  Exhibit M1 is the Amended Initiating Application filed by Mr Vaulks in the Federal Circuit Court of Australia on 16 June 2017 that discloses the telephone number as relied upon by the process server.  It also discloses his address as being D Street, Suburb F in Victoria.

5. An affidavit of a second process server, Ms C was also relied upon.  Ms C attended at the address contained in Mr Vaulks’s Amended Initiating Application in an attempt to serve documents upon him.  She deposes that she met a male person who was alighting from a motor vehicle at that residence.  That motor vehicle bore the name of the business of which Mr Vaulks is the proprietor as established by the affidavit of Mr G, filed 11 February 2020.  That is, she endeavoured to serve a male person at the Father's address, alighting from the vehicle bearing the name of the Father's business.  The process server deposes to particular interactions between herself and the male person that lead to a strong inference being available that the person that she was then dealing with was in fact Mr Vaulks.  The process server deposes that she asked whether that was who the person was and that he asked who she was, and that she responded that she had family documents for him.  At that point he closed the door.  She indicated that she would be leaving the document there for him and left the documents at his door.  He then threatened her saying “you have two minutes to get off my property” at which point the process server got into her car to leave the property.  She attempted to take a photograph of the car bearing the business name but was unable to do so as the male approached her car. 

6. The collection of circumstances leads to a sufficient inference to be drawn to establish that the documents set out in the Affidavit of Service of Ms C being:

   ·the Initiating Application;

   ·the Affidavit of Ms Brucedale of 25 October 2019;

   ·the Affidavits of Mr G of 28 October 2019 and 25 October 2019;

   ·the Affidavit of Mr Bernati of 2 October 2019;

   ·the Affidavits of Birth Certificate for Y and X;

   ·a letter from ACT Community Services; and

   ·a letter from Capon & Hubert, the firm of Mr G, dated 1 November 2019 and indicating when the matter was next due to be listed in Court

   were served upon Mr Vaulks on 23 January 2020.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 4 March 2020.

Associate:     

Date:  11 March 2020