Hurst and Hurst

In *Hurst and Hurst*, the husband sought to set aside an order made in previous family law proceedings. The husband contended that the wife had failed to properly serve him with documents in those earlier proceedings, and that this failure constituted a miscarriage of justice under section 79A(1)(a) of the *Family Law Act 1975* (Cth). The court was therefore required to determine whether the wife's actions in attempting to serve the husband, and the husband's subsequent claims of non-receipt, amounted to a miscarriage of justice sufficient to warrant setting aside the prior order.

The court considered evidence regarding the wife's attempts to contact the husband and serve him with documents. The husband argued that the wife could have discovered his overseas address through mail received from his lawyers or by contacting his sister-in-law. However, the wife provided evidence that she received the divorce petition from the court, not the husband's lawyers, and that she could not have obtained the lawyers' contact details through that means. The court accepted the wife's evidence regarding the divorce petition. Regarding other mail, the husband presented an envelope addressed to the wife, which he claimed was sent by his overseas lawyer containing a divorce certificate. The court inferred from the markings on the envelope that Australia Post had attempted delivery but was unable to do so, ultimately returning the mail to the sender.

The court was not satisfied that the circumstances specified in section 79A(1)(a) of the *Family Law Act 1975* had occurred, and therefore found that there had not been a miscarriage of justice. Consequently, the husband's application was dismissed.