Griffin and Trueman (No 3)

[2014] FamCA 1165

FAMILY COURT OF AUSTRALIA

GRIFFIN & TRUEMAN (NO 3) [2014] FamCA 1165

FAMILY LAW – PRACTICE & PROCEDURE – dispensation with service – application for urgent Recovery Order – where father has sole parental responsibility for the children – where the mother did not return the children – application heard on ex parte basis.

APPLICANT: Mr Griffin

RESPONDENT: Ms Trueman

FILE NUMBER: NCC 220 of 2012

DATE DELIVERED: 25 November 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 25 November 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr West of Slater & Gordon Lawyers

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. Service for the purpose of today’s proceedings is dispensed with under rule 7.18 and the application will be dealt with on an ex parte basis, as sought by the father.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Griffin & Trueman (No 3) 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 PARRAMATTA

FILE NUMBER: NCC 220 of 2012

Mr Griffin

Applicant

And

Ms Trueman

Respondent

REASONS FOR JUDGMENT

1. This is an application to dispense with service of an Application in a Case and supporting affidavit.

2. The Application in a Case is for a Recovery Order in respect of parenting orders which were made by this Court on 1 August following a hearing between 1 to 4 July 2014.  Under those orders the father who is the Applicant today, has sole parental responsibility for the children and they live with him and spend specified time with their mother as set out in the orders.

3. The father has made a number of attempts to cause the Application in a Case and affidavit to be served upon the mother.  Those attempts are set out in the affidavit of Adam West being the solicitor who represents the father of 25 November 2014.  He deposes to having sent instructions to a process server to arrange for service to be effected upon the mother and there is also evidence in an affidavit from the process server himself, Mr Q as to his attempts to serve the documents yesterday.

4. The premises that Mr Q attended is the maternal grandmother’s home which is an address where the mother has resided from time to time and possibly resides at present.  In the course of the parenting hearing, there was evidence that that was an address which has been occupied by the maternal family for many years and as I said the mother has lived there from time to time.  A female occupant at that home last night at 5.00pm identified herself as the Respondent’s mother and told the process server that the Respondent was not home at the moment and that she should be home after 6.00pm.

5. The process server again attended at against at 6.35pm last night.  A younger female answered the door and told the process server that the mother was not home and would not be home tonight.  The maternal grandmother then came to the door and said she did not know what time her daughter would be home.  The process server asked for her to pass on the name and number to the Respondent and have her call him.  There is no evidence that the process server heard any further from the Respondent mother.

6. This morning when the matter came before the Court I asked for it to be stood down for the Applicant’s solicitor to make contact with mother’s former solicitor.  In his affidavit Mr West said he spoke to the Respondent’s mother’s former solicitor at 10.22am and informed a person from that office about the proceedings and asked for her to attempt to contact the Respondent.  At 11.00am Mr West received a telephone call from Ms R, the mother’s previous legal representative who said words to the effect:

   My office has tried contacting the mother, however, the phone appears to be switched off.

7. She also informed Mr West that she did not have instructions to act for the mother and was unable to attend Court today.

8. In my view, it appears that the mother is avoiding being served with the documents and the father has taken all reasonable steps to serve the document or bring it to the notice of the Respondent mother, especially bearing in mind the urgent nature of a Recovery Order.

9. I dispense with service for the purpose of today’s proceedings under rule 7.18 and deal with the application on an ex parte basis as sought by the father.

10. As indicated, the application is by its nature an urgent application.  The Applicant father is the person who has parental responsibility of the three children who are B who is aged nine, C who is eight and D who is seven.

11. The father is, therefore, a person entitled to make application for such an order under the Act.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 25 November 2014.

Legal Associate:  Natasha Heathcote

Date:  18 December 2014.