FOLEY & HAILES

[2014] FamCA 657

FAMILY COURT OF AUSTRALIA

FOLEY & HAILES [2014] FamCA 657

FAMILY LAW – Non-compliance by husband – matter adjourned to final hearing with leave to proceed on an undefended basis

APPLICANT: Ms Foley

RESPONDENT: Mr Hailes

FILE NUMBER: MLC 1774 of 2014

DATE DELIVERED: 6 August 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 6 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Noble House Lawyers

COUNSEL FOR THE RESPONDENT: No Appearance

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED THAT

1. The time for compliance by the wife with paragraph 3 of the Order made on 16 July 2014 be extended to 4.00 pm on 7 August 2014 and the wife file proof of such service.

2. This matter be adjourned before me on 26 August 2014 at 9.00 am and, subject to any further order of the Court, proceed on that day as an undefended final hearing of the wife’s Amended Initiating Application filed on 22 July 2014.

3. This Order be sent by the Registry to the husband at B Street, C Town, Victoria, … by pre-paid post and, henceforth, that address be recorded as the husband’s address for service and remains so unless he files or causes to be filed a Notice of Address for Service to the contrary.

4. The wife’s solicitors send a text message to the husband within the next 24 hours advising him that today it was ordered by the Family Court of Australia at Melbourne that the wife could proceed on an undefended final basis with her amended property applications (seeking a sale of the C Town property and payment to her of the net proceeds) on 26 August 2014 at 9.00 am and that, if he does not want that sale to occur, he should obtain legal advice and/or make an application immediately, and file proof of the text having been sent.

5. The costs of this day be reserved.

6. The wife file and serve an outline of case by not later than 22 August 2014 and notify my Associate – email … - on that day of Counsel who will appear on 26 August 2014.

7. My reasons for decision this day be transcribed and when settled a copy be placed on the Court file and be sent to the parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Foley & Hailes 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 1774 of 2014

Ms Foley

Applicant

And

Mr Hailes

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me having been placed in this judicial duty list by Registrar Field on 16 July 2014 which was the date appointed for a conciliation conference of the property proceedings between the parties. 

2. Today, Ms Dinsdale, solicitor appears on behalf of the wife and has obtained leave to file an application in a case in which her client seeks that, in lieu of personal service on the respondent husband of the wife’s amended initiating application and affidavit both filed on 22 July 2014, there be substituted service on the husband by sending same by regular prepaid post to him at 205 Victoria Road, Gruwera.

3. In support of that application for substituted service, I have also given leave for the wife’s practitioner to file an affidavit by Mr D sworn on 31 July 2014 in which he purports to give evidence which is clearly hearsay in relation to attempts to serve the documents on the respondent husband, such attempts having been undertaken on four sessions, twice on 22 July 2014 and twice on 23 July 2014.

4. There are also two affidavits of service by Mr E which depose to the attempts at service on those days and say that on each instance “The person refused to accept them.  I put them down and left them in the presence of the person and told the person what the documents were”.  It seems to me therefore that Mr E must have been given, at least, four copies of the documents.

5. The substantive proceedings were initiated by the wife’s application filed on 3 March 2014.  An affidavit of service sworn by Suzanne Twite, process server on 21 March 2014, deposes to her having served the documents on the respondent husband by handing them to him on 19 March 2014 at F Street, Suburb G.  The process server deposes to having seen the respondent husband sign the attached acknowledgment of service.  There is an acknowledgment of service attached and also that she said to the person “Are you [Mr Hailes]” to which he replied “Yes”.  There is no affidavit of proof of signature by the wife or other identification of the affixed signature being the husband’s signature.

6. The first return date of the proceedings was on 15 April 2014.  On that day the matter proceeded before Registrar Field.  Ms Patterson appeared for the applicant and the respondent appeared in person.  It does not appear that the respondent filed a notice of address for service on that date and I am at a loss to know how the matter could have proceeded before the Registrar without him being required to file an address for service given the provisions of Rule 8.05(1)(b) of the Family Law Rules.

7. The order made on 15 April 2014 was sent to the husband at B Street, C Town.  My understanding is that, if the document was returned as not being able to be delivered, it would be on the Court file now and I note that it is not.  I therefore assume, regularly, that the document was duly delivered.

8. The orders made on 15 April 2014 provided for the respondent husband to file and serve a response and a financial statement by 14 May 2014, that the parties exchange documents by 6 June 2014, that in the event that there was no agreement as to the value of the matrimonial home at C Town by 13 June 2104 then, the parties jointly obtain a valuation of that property and such valuation be published by 2 July 2014.  The parties were otherwise required to attend a conciliation conference with the registrar at 9.15 am on 16 July 2014.

9. I am informed by Ms Dinsdale, that on 16 July Ms Patterson appeared again for the applicant but there was no appearance by or on behalf of the respondent husband and in those circumstances, the matter was sent by Registrar Field into this judicial duty list.  There has been no conciliation conference.

10. On 16 July it was also ordered that the applicant file and serve her amended application and affidavit in support of final orders on the respondent “no later than 21 July by sending same by ordinary prepaid post to the respondent’s last known address”.  It was otherwise ordered that the time for compliance with paragraph 1 of the orders on 15 April “which required the husband to file a response and financial statement”, be extended to 30 July 2014.  It was also ordered that in the event the respondent husband didn’t appear at Court today or file his response and financial statement by 30 July, “the applicant has liberty to apply to have her amended initialling application proceed on an unopposed basis”.  Finally, the applicant’s costs thrown away this day are reserved.

11. Ms Dinsdale, for the applicant, says that the only order that she seeks today is an order for substituted service to be effected by sending the documents, being the amended initiated application and her client’s affidavit, to the husband by regular post at B Street, C Town.  It seems to me that that has already been provided for by orders made by the Registrar and that what ought to have happened today was that the matter be in a position to proceed on an unopposed basis.

12. However, I note that the wife has filed a lengthy affidavit affirmed on 21 July 2014 and whilst I have not read it in its entirety, it appears that it sets out a history of the parties’ relationship and other matters concerning property and child support so it does need to be served. 

RECORDED  :  NOT TRANSCRIBED

1. It does appear to me that the practitioner for the wife has attended Court today rather less prepared than she might have been had she realised that the matter may have been able to proceed on an unopposed basis.  Out of an abundance of caution and having regard to the fact that the wife is not at Court today either, I am prepared to put the matter over to another day on the basis that the husband will be notified by correspondence and text sent to his mobile phone that the wife has obtained leave to proceed with her amended application on a final basis even if the husband does not attend Court but providing he has adequate notice of the date of hearing.  That will occur before me and can take place on 26 August at 9.00 am.

2. Henceforth, any document to be served on the husband will be adequately served if sent to him by pre-paid post at B Street, C Town, Victoria.  This will alter only if the husband files a Notice of Address for Service with a different location or further order of the Court.

3. If the husband does not appear before me on 26 August 2014 at 9.00 am I will consider whether it is still appropriate to determine the wife’s application (as amended) on a final basis.  It may be that I will be satisfied that he husband will participate in the proceedings, that he should be heard, and that the wife will not be irreparably prejudiced by an adjournment.  However, if the husband does not attend it is very likely that the wife’s application will be determined (at 9.00 am on 26 August 2014) without any further input from him.

I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 6 August 2014.

Associate: 

Date:  15 August 2014