Fulton and Packer

[2017] FamCA 630

FAMILY COURT OF AUSTRALIA

FULTON & PACKER [2017] FamCA 630

FAMILY LAW – PRACTICE AND PROCEDURE – Service – Where the Applicant is unable to effect special service by hand of an Application for Contravention as the Respondent has not filed a Notice of Address for Service –Where service of documents upon the Respondent will be deemed to have been effected provided that such documents are transmitted to the Respondent via email.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Mr Fulton

RESPONDENT: Ms Packer

FILE NUMBER: LEC 575 of 2007

DATE DELIVERED: 11 August 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 11 August 2017

REPRESENTATION

APPLICANT: In Person

RESPONDENT: No appearance

Orders

IT IS ORDERED THAT

1. The Application – Contravention filed 17 July 2017 is adjourned for hearing to 31 August 2017 before Justice Hogan.

2. The Application – Contravention filed 23 November 2016 is dismissed.

3. The email correspondence and attached medical certificate provided by the Respondent to the Court on 11 August 2017 be marked as Exhibit 1 in these proceedings, and a copy of the same be provided to the Applicant.

4. Service of documents upon the Respondent will be deemed to have been effected, provided that such documents are transmitted to the Respondent via email to the following email address: ….

5. The Applicant provide to the Court at the hearing on 31 August 2017, a copy of any email effecting service sent to the Respondent, in accordance with paragraph 4.

6. A copy of the Order made today be provided to the parties, and emailed to the respondent via the email address she utilised in her correspondence with the court this morning. 

7. A transcript of today’s proceedings, once received, be marked as Exhibit 2 in these proceedings, and a copy of the same be provided to the parties.

NOTATION

(A)The Applicant advised the Court that at this stage, it was his intention to rely upon the following material at the hearing on 31 August 2017: his affidavit filed 17 July 2017, the affidavit of Mr FF filed 3 August 2017, and the affidavit of Ms GG filed 3 August 2017.

(B)The Applicant sought that the Application – Contravention filed 23 November 2016 be dismissed, on the basis that the Application – Contravention filed 17 July 2017 contains the assertions contained within the earlier application for contravention.

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 Fulton & Packer 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 BRISBANE

FILE NUMBER: LEC 575 of 2007

Mr Fulton

Applicant

And

Ms Packer

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The reasons I deliver are also intended to provide to the Respondent information I consider appropriate, given her status as a litigant in person (at present) as to the potential consequences of a failure to appear at the next date on which the matter is listed before me. 

2. Part 21.1 of the Family Law Rules 2004 (Cth) applies to applications for orders under Division 13A of Part VII. That is, it applies to applications for contravention such as that filed by the Applicant on 17 July 2016.

3. Rule 21.07 of the Family Law Rules 2004 (Cth) provides that, if a Respondent fails to attend a hearing in person or via lawyer, the Court may:

   a)determine the case; 

   b)issue a warrant for the respondent's arrest to be brought before the Court;  or

   c)adjourn the application.

4. Today, as a consequence of the Respondent's failure to appear at the hearing listed for 10.00 am this morning, Mr Fulton sought that the matter be adjourned.  I have acceded to that application and list the Application for Contravention before myself at 10.00 am on 31 August 2017. 

5. Prior to him being made aware of the Court's receipt of an email and attached copy of a medical certificate, (which I have marked as Exhibit 1 in the proceedings), he disavowed reliance upon seeking that I issue a warrant for the Respondent's arrest.

6. The additional power to issue a warrant for an arrest is to be found in Rule 21.16(1)(a) of the Family Law Rules 2004 (Cth), which provides that a party may apply without notice for a warrant to be issued for the arrest of a Respondent if a Respondent is required to attend Court on being served with, in this case, relevantly, an Application for Contravention and the Respondent fails to appear at the hearing date.

7. Mr Fulton informs the Court from the bar table that he had previously provided the Application for Contravention filed 23 November 2016 to the Respondent via transmission by email.  He informs the Court that, following that course, it was asserted he was engaging in, or had engaged in, behaviour of a stalking nature and/or that the Application for Contravention had been served "illegally". 

8. It is clear that the Respondent was aware, by whatever means, of the Application for Contravention filed 23 November 2016.  That is apparent when regard is had to the following information. 

9. As part of the prosecution of the Application for Contravention filed 23 November 2016, Mr Fulton, it appears, sought the issue of a number of subpoena - included as a respondent was the organisation EE Group.  Notices of Objection to the subpoena were filed, including by the Respondent on 22 February 2017. 

10. Recourse to the orders made in this matter makes it clear that the objections to the various subpoena came before Registrar Spink;  that, on 1 June 2017, both the Applicant and the Respondent appeared without representation before him in relation to the issue of the Objections to the four subpoena issued by the Applicant as part of his Application, or associated with his prosecution of the Application for Contravention filed 23 November 2016, that Application having been transferred to this Court by an order made by Judge Coates on 6 February 2017.

11. It also appears from recourse to the orders previously made in this Court and the Reasons for Judgment delivered by Senior Registrar Spink on 28 June 2017 that he set aside three of the subpoenas and provided the parties the opportunity to inspect documents produced by the fourth recipient of a subpoena. 

12. The usual course of communication from the Court to parties is - and, as I understand it, has been in this case - to provide a copy of the orders made and Reasons for Judgment delivered by forwarding them to the postal address, in the case of the Respondent, that the Court holds on its Court file.

13. Further, the fact that the June 2017 appearance before Senior Registrar Spink had been predated by an appearance on 21 March 2017 before him (at which the Respondent appeared in person by telephone) together with the appearance on 1 June 2017, to which I have already referred where each of the parents appeared in person;  and, the fact that, between 12 June 2017 and 26 June 2017 and, in accordance with the orders made by the Senior Registrar in relation to the transmission of submissions provided by the father to the mother following their receipt by the Court, there were email communications by the Case Coordinator on 12 June 2017 providing the Respondent with a copy of the father's submissions.

14. There was also communication between the Case Coordinator and the Respondent between 21 June 2017 and 26 June 2017 in relation to the appearance on 28 June 2017, including the request made by the Respondent for the provision of a Safety Plan for the appearance before the Senior Registrar and the Court's communication to her that appropriate arrangements would be put in place to meet her request for the imposition of that Safety Plan. 

15. In addition, I note that, on 31 July 2017, the Case Coordinator forwarded to the Respondent (by email by way of attachment) the Application for Contravention filed by the Applicant on 17 July 2017 and affidavits by him filed 17 July 2017 and 26 July 2017 respectively.

16. Any thought that the Respondent was unaware of the proceedings this morning is, of course, immediately obliterated by the fact that, at about quarter to 9.00 am this morning, she left a voicemail for the Case Coordinator to inform that she would not attend at Court today as she was recovering from the flu and still felt exceptionally unwell; and the subsequent email forwarded by the Respondent to the Court at 9.35 am this morning in which she confirmed her earlier call and attached a medical certificate, those documents constituting Exhibit 1 in the proceedings.

17. In order that there not be any further issue in relation to the issue of service, I have turned my mind to the most appropriate way to deal with that particular matter, taking into account the Rules and the provision they make for service of Applications for Contravention. 

18. It is clear that it certainly would be arguable that, absent an order from the Court, the Application for Contravention is an Application which must be served personally by hand upon a Respondent.  The purpose underlying such a Rule seems to me to be obvious:  namely, to ensure that, given the nature of an Application for Contravention, a person who is a Respondent to the same is afforded appropriate notice of that application.

19. It is clear, when regard is had to Rule 7.03 and table 7.1, that the Application for Contravention is to be served by way of special service by hand.  That is to be effected in accordance with the Rules in the manner prescribed by Rule 7.06 of the Rules. 

20. However, the Rules also provide for a number of other matters or dispensations in relation to service.  Particularly, Rule 7.18 provides to the Court the power to make orders dispensing with service or to make orders which deal with the manner in which service can be effected if persuaded that it could not be effected otherwise in accordance with the Rules.

21. I am satisfied here that, given that the Respondent has not filed a Notice of Address for Service which provides a street address and that the Applicant does not have access to her street address or current whereabouts he would not be able to put into effect, or cause to be put into effect, special service by hand as required by the Rules. 

22. Consequently, I am satisfied that it is appropriate to put in place and to make orders which permit the service of the Application for Contravention filed 17 July 2017 and the accompanying affidavits (to which reference has already been made in discourse and which will be included as part of the Notation on the order which will issue) provided that they are forwarded to the Respondent by email to the email address she has utilised in communicating with the Court this morning and in providing to the Court a copy of a medical certificate.

23. That email address, for the record, is ….

24. I have taken into account that service of the Application for Contravention and accompanying affidavits if effected by transmission to that email address are likely to bring the documents to the attention of the Respondent - given that it is the email address she used this morning to communicate the reasons underpinning her failure to appear today.  I am satisfied that there are no other reasonable steps that could be taken to serve the documents upon her.  I am also satisfied, for the reasons I have outlined, that the Respondent was aware of the existence of the Application for Contravention filed 23 November 2016 and the listing of the hearing of that Application to 10.00 am this morning.

25. I am not satisfied that the Respondent could reasonably become aware of the existence of the documents by advertisement because there is no address available to the Court to know where she is, and, therefore, it is impossible (other than by way of very broad assessment) to ascertain where any advertisement could be made so as to bring the nature of the proceedings to her attention.

26. I am satisfied that transmission by email to the email address is a form of communication that is, in fact, reasonably available so as to ensure that the adjourned hearing date of 31 August 2017 is brought to her attention.

27. I have taken into account the cost associated with service by way of email:  that is likely to be very limited and unlikely to be of any significance at all.

28. So I order, therefore, that service of the Application for Contravention filed 17 July 2017 and the affidavits of the Applicant filed 17 July 2017 and of the two witnesses he intends to rely upon at the hearing, whose names will be inserted in the order, will be deemed to have occurred upon the forwarding by him of those documents by email to the email address contained within Exhibit 1.

29. I also make an order that a copy of the order made today and a copy of the Transcript once obtained be provided to each of the parties and that a copy of the order and a copy of the Transcript be emailed to the Respondent at the email address she has utilised this morning to communicate with the Court. 

30. I will mark the Transcript as Exhibit 2 in the proceedings once it is received.  Otherwise, the matter will be adjourned for further hearing before me to 10.00 am on 31 August 2017.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 11 August 2017.

Associate:

Date:    11 August 2017