Ezard and Ezard

[2011] FamCA 730

FAMILY COURT OF AUSTRALIA

EZARD & EZARD [2011] FamCA 730

FAMILY LAW – amended application

Family Law Act 1975 (Cth)

APPLICANT: Mr Ezard

RESPONDENT: Ms Ezard

FILE NUMBER: MLC 5611 of 2011

DATE DELIVERED: 5 September 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 5 September 2011

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: No appearance

Orders

1. That the amended application filed 31 August 2011 is adjourned to the Judicial Duty List at 10.00am on 4 October 2011.

2. That the applicant have leave to file a further amended application and further affidavit in support of the amended application.

3. That the requirement that any documents already filed or proposed to be filed pursuant to paragraph 2 of these orders, upon the respondent, is waived.

4. That the reasons be transcribed

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 5611 of 2011

Mr Ezard

Applicant

And

Ms Ezard

Respondent

REASONS FOR JUDGMENT

1. This is an application filed by Mr Ezard, initially filed on 28 June in this Court, and an amended application filed only a week ago on 31 August that seeks effectively the change of a child’s surname.  It may sound like a relatively simple exercise, there are considerable problems with the amount of information provided in evidentiary form in the affidavit that has been filed. 

2. The proceedings should have been issued in the Federal Magistrates Court at Dandenong where matters were heard in March of this year but because that Court said it did not have sufficient dates to enable the application to be heard expeditiously, Mr Ezard came into Melbourne and filed in this Court.  The application has not been served on the respondent.  The best evidence before me is that the wife left Australia some time in late 2010 and her father has filed an affidavit indicating that she contacted him on 31 December 2010 asking for details of Country B relatives so that she could contact them but he refused to give her the details.

3. That probably would not be sufficient evidence to satisfy me to waive all service requirements but to some extent I am satisfied there is no further need for service because a Federal Magistrate on 2 March 2011 waived all service requirements, allowed the applicant to proceed on an undefended basis and made final orders that the two children live with the husband.  It would seem that the wife has shown little interest in either of these children but I have put together most of what I understand about this case from discussions with Mr Ezard.  That is not an appropriate way to try and make an order under Part VII of the Family Law Act.

4. What I propose to do, however, is to waive the service requirements so that the matter can proceed on the next occasion, providing Mr Ezard gives me all of the information that would satisfy section 60CC and section 60B of the Act.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 5 September 2011.

Associate: 

Date:  20 September 2011