Ebert & Liddy
[2024] FedCFamC2F 1149
•8 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ebert & Liddy [2024] FedCFamC2F 1149
File number(s): DGC 4992 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 8 August 2024 Catchwords: FAMILY LAW – Contempt application – Where contravention of financial obligation alleged to be contempt pursuant to section 112AP – Where attempts at personal service not successful – Where amended application and affidavit served by email – Rules as to personal service varied for this case – Application for adjournment refused. Legislation: Family Law Act 1975 (Cth), section 112AP
Family Circuit and Family Court of Australia (Family Law) Rules 2021, rule 2.33
Division: Division 2 Family Law Number of paragraphs: 27 Date of hearing: 8 and 12 August 2024 Place: Melbourne Counsel for the Applicant: Mr Glezakos Solicitor for the Applicant: Marshalls and Dent Lawyers The Respondent: In Person ORDERS
DGC 4992 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS LIDDY
Applicant
AND: MR EBERT
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
8 AUGUST 2024
THE COURT ORDERS THAT:
1.Service on the respondent, MR EBERT, by email in mid-2024 amended section 112AP application and the affidavit in support of same date be and is sufficient service in this case.
2.The application for an adjournment made this day by the respondent be and is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations, passages of authorities and evidence, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
In the matter of Liddy & Ebert, an application that a party be dealt with for contempt pursuant to section 112AP of the Family Law Act 1975 (Cth) comes before me on 8 August 2024. The matter had been listed this day back on 25 March 2024 by her Honour Judge Bender, when the respondent, Mr Ebert, appeared in person.
Section 112AP is as follows:
Section 112AP Contempt
(1) Subject to subsection (1A), this section applies to a contempt of a court that:
(a) does not constitute a contravention of an order under this Act; or
(b)constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court.
Well before the matter being fixed for hearing, a contempt application had been filed by the applicant, Ms Liddy, alleging that Mr Ebert had not complied with a number of obligations to pay money to her. That had been filed on 6 February 2024, it came before the court on 7 February 2024 and Mr Ebert’s then solicitor, Mr B, appeared before the Court.
The matter was adjourned to 22 February 2024. Again, on 22nd of February, Mr B again appeared on behalf of Mr Ebert. The matter was adjourned to 25 March 2024 and that is the day where the contravention application filed on 6 May was then fixed for hearing on 8 August this year.
On 25 March, where a continuing contravention was alleged (further obligations to provide documents and to pay money were not being complied with), and the applicant, Ms Liddy, having flagged that the allegations would need to be updated, Her Honour Judge Bender ordered the applicant file and serve any amended application in regard to the contempt and a single consolidated affidavit in support of the enforcement application and contempt application on or before 18 July 2024.
I am satisfied that, as at 25 March 2024, Mr Ebert well and truly knew that he was being taken to court where contempt of court was being alleged against him. It was alleged that he had committed contempt of court.
He had been represented by a solicitor in regard to that very same allegation on two occasions, as well as appearing himself by 25 March 2024. He tells me, and I accept, that by non-payment of legal fees he fell out with his lawyer, in the sense that his advice “faded away”. That is likely to be a very accurate description of the lack of enthusiasm that professionals have to continue to render services if they are not going to get paid.
On 18 July 2024, Ms Liddy’s solicitors sent to the Court an amended contempt application and a consolidated affidavit. The documents were not sealed and returned until the following day; that is, 19 July 2024.
Mr Ebert has today made submissions pointing out to me that it was not done on time. And was not done on time at a time when he was unrepresented. I have considered that and his complaint in that regard. But I am not satisfied that in the circumstance where the Court did not make the sealed copy documents available until the day after, that this is a material matter or that it prejudices Mr Ebert.
Issue of service
The Rules of Court provide that a contempt application is to be served by personal service. On or about 20 July 2024, it appears to me, sensibly, and as a courtesy to Mr Ebert, whilst attempting to provide for personal service, Ms Liddy’s solicitors had emailed the documents to Mr Ebert.
The documents were provided to a process server in an attempt to provide for personal service upon Mr Ebert. The address for service on the Notice of Address for Service had been C Street, Suburb D, a suburb of Melbourne. The process server attended at that address (according to the Affidavit of Service filed on 1 August 2024) and spoke to a male who identified himself as Mr Ebert’s father.
The process server advised that Mr Ebert did not live at the address and was currently overseas. The process server was later advised that it was thought that Mr Ebert was returning to Australia in mid-2024 and, on that day, the process server was again instructed to make personal service.
At the other known address, or address known to Ms Liddy of Mr Ebert, which was E Street, Suburb F, another and not-too-far distant suburb of Melbourne (the residents of Suburb D may not agree with that), in mid-2024, the process server attended, and no response was received.
A woman who was exiting that building expressed the opinion that Mr Ebert lived at E Street and the process server was able to gain access to the front door. I infer that there had been a security arrangement that would keep people otherwise outside the building rather than the front door of the particular home, as is the custom of those who live in Suburb F.
No response was received upon repeated knocking, hence despite two attempts, personal service was not able to be achieved on Mr Ebert. A text message via email was sent to Mr Ebert by Ms Liddy’s solicitor, confirming that documents had been sent by email. In mid-2024, courteously, Mr Ebert responded to say that he could not afford a lawyer, and he would be in contact if he could find a solution to the matter before 8 August 2024.
Ms Liddy’s solicitor emailed Mr Ebert again, thanking him for the email and requesting that he sign the enclosed acknowledgement of service. Mr Ebert did not return the acknowledgement of service, but he sent an email, referring to the solicitor courteously by name and stating, started in inverted commas, “I acknowledge receipt.”
Today, Mr Ebert has pressed upon me the importance of personal service. I accept that submission. It is important.
He has also asserted that he was overseas at the time the personal service was being pressed in mid-2024. He has also told me, and I have some sympathy for the circumstance, that he receives many, many emails on a daily basis and that is unfortunately the way of the modern world.
I do not always accept that, because an email has been sent, I can infer that the person at the other end has read it. However, an email from Ms Liddy’s solicitors in the context of these highly contentious proceedings would get his attention. They being the solicitors that:
·had pressed the application back on 6 February 2024 when the application was issued; and
·were the opposing solicitors on 7 February 2024 when Mr B appeared on behalf of Mr Ebert; and
·were the opposing solicitors on 22 February when Mr B appeared once again on behalf of Mr Ebert; and
·were the opposing solicitors on 25 March 2024 when Mr Ebert appeared in person.
I am satisfied that the emails of mid-2024 would have caught the attention of Mr Ebert and, further, he has appeared before me today.
He has this day sought some time to enable him to consult with a duty lawyer and I permitted him to do that. Rule 2.33 of the Family Circuit and Family Court of Australia (Family Law) Rules 2021 is as follows,
Rule 2.33 Court's discretion in relation to service
Nothing in this Part affects the power of the court:
(a)to authorise service of a document in a way that is not provided for in this Part; or
(b) to find that a document has been served; or
(c) to find that a document has been served on a particular day.
I am satisfied in all the circumstances of this case and, primarily, because the amended application is in substance updating what is alleged to be a continuing breach to the substance of the application that was before the Court on the three occasions in February and March of this year (when either Mr Ebert himself or his lawyer appeared), that it is in the interests of justice and without any substantial prejudice to Mr Ebert that I vary the service procedures. In that circumstance, I am satisfied that Mr Ebert has been served by the appropriate, in this case, means of email (noting that email address is on his Notice of Address for Service).
I am satisfied that he was aware of the proceedings, the nature of the allegations and, at least broadly, the evidence against him.
Application for an adjournment
Mr Ebert had sought that in the event I was not satisfied of his submission of inadequate service, that the matter should be adjourned for about six weeks to enable him to get legal advice. I regard that as, independently of the service issue, an application for an adjournment.
In the circumstances where the contempt application seeks:
·to enforce financial obligations that were formally put in a section 90UD financial agreement back on 4 February 2022 and later; and
·after default with at least some of the requirements, converted to court orders on 1 May 2023 and 16 November 2023, and that;
·I am hearing a contempt application filed in regard to those financial obligations;
I must not only consider any potential prejudice to Mr Ebert but also prejudice to Ms Liddy, who has appeared in court, over and over and over, in an attempt to have her allegation of a contemptuous breach of the orders heard.
In all of those circumstances, I am satisfied that it is in the interests of justice that the matter proceed.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 23 August 2024
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