Jewers and Marchand

[2018] FamCA 1081

FAMILY COURT OF AUSTRALIA

JEWERS & MARCHAND [2018] FamCA 1081

FAMILY LAW – PRACTICE AND PROCEDURE – Dispense with service

Family Law Rules 2004 (Cth) r 7.18

APPLICANT: Mr Jewers

RESPONDENT: Ms Marchand

FILE NUMBER: MLC 165 of 2010

DATE DELIVERED: 14 December 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 14 December 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mazengarb Family Lawyers

SOLICITOR FOR THE RESPONDENT: No appearance by or on behalf of Respondent

Orders

1. I dispense with the requirement for service of the Initiating Application filed on 2 May 2018 and all documents associated with that Application. 

2. The matter is adjourned for hearing at 10am on 22 January 2019.

3. I direct that the Applicant cause a copy of these orders to be sent by registered post directed to the Respondent care of the B Town Post Office in Queensland.

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 Jewers & Marchand 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 CANBERRA

FILE NUMBER: MLC 165 of 2010

Mr Jewers

Applicant

And

Ms Marchand

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These proceedings commenced by Initiating Application on 2 May 2018.  The essential relief sought by the Applicant is a declaration of invalidity of marriage between himself and the Respondent by virtue of the Respondent having been married to another person at the time of entering into the purported marriage to the Applicant. 

2. It is an application that in the usual course requires special service. That has not been able to be effected in this instance and so oral application is made to dispense with service pursuant to Rule 7.18 of the Family Law Rules 2004. In support of that application the Applicant relies upon an affidavit of his solicitor Ms C, filed 16 November 2018, which in turn produces exhibit H1, a tender bundle of exhibits associated with that affidavit.

3. Ms C outlines comprehensive efforts to both serve the Respondent and to bring the proceedings to her attention.  This involves her contact with the Respondent's former lawyers, Ms D Pty Solicitor who, it turned out, neither hold instructions for the Respondent nor know of her whereabouts.  Further enquiries were made through the electoral roll by virtue of searching two different names known to be used by the Respondent.  Multiple persons were found who held one of those names and correspondence was sent to each of those.  One person was found whose name corresponded to the second name.  That person was recorded as living at E Street, F Town in Queensland.  Enquiries were also made through the Respondent's son who was also unable to identify where the Respondent might be. 

4. Correspondence was then sent to the F Town address and contact was made by a third party to the legal firm representing the Applicant.  That person identified himself as Mr G and confirmed that the particular person was the person being sought by the Applicant.  His contact with the law firm included an occasion to advise them that the Respondent had been in contact with him and he had made her aware of correspondence that he had received from the Applicant's law firm, and thus made her aware of the proceedings.  Correspondence was sent to Mr G, some of which was received and read out to the Respondent, some of which was returned unopened.  An explanation which is difficult to make sense of accompanied the return of some of those documents. 

5. Ms C subsequently arranged for a process server to attend at the address.  The process server did so but was unable to serve documents on the Respondent.  Rather, a person identified themselves as being the resident of the F Town residence, Mr H.  While he knew the Respondent he indicated that he did not know her whereabouts but understood that she was resident in J Street, K Town, Queensland.  He did not have a forwarding address for her. 

6. However, and importantly, subsequently a telephone call was received by Ms C on 12 October 2018.  The caller identified herself as the Respondent and suggested that the documents be sent to the post office at B Town in Queensland.  The conversation between Ms C and the Respondent is set out in full in her affidavit.  They include the Respondent identifying herself by the name Ms Marchand, asking what the documents were about being and being told by Ms C words to the effect “they are about nullifying your marriage with [Mr Jewers]”.  Ms C then records the Respondent as saying “Oh right.  You can send the documents to the [B Town] Post Office, Queensland …”.  She then indicated to Ms C that she would be able to receive the documents there. 

7. Ms C subsequently arranged for the court documents to be sent to the post office at B Town. 

8. Although there is not evidence of this particular matter, Mr Mazengarb who appears for the Applicant concedes that he currently possesses information that the documents remain at the B Town post office and have not been collected by anybody.

9. It is under those circumstances that an order is sought to dispense with service. 

10. Rule 7.18 deals with dispensing with service and indicates that there are number of factors that I may have regard to when considering such an application. One of them is the proposed method of bringing the document to the attention of the person to be served. There is no current proposal of any other methodology to be used beyond the description of the steps that have already taken place. I am also to consider whether all reasonable steps have been taken to serve the document or bring it to the notice of the person to be served. The matters that I have recited, I am satisfied, constitute all reasonable steps in this case.

11. I am further to consider whether the person to be served could reasonably become aware of the existence and nature of the document by advertisement or another form of communication that is reasonably available.  I am not aware of any form of communication that would be likely to have that effect but note that the interaction between the Respondent and Ms C indicates that sufficient has taken place such that the Respondent is currently aware of the nature of the documents and the nature of the proceedings involving the question of the validity of her marriage to the Applicant.  I may also consider the likely costs of service which, in the absence of a proposed further methodology of service, do not arise. 

12. I am also to consider the nature of the case.  In considering the nature of the case, the question of validity of marriage is a grave and important matter.  This is undoubtedly a reason why special service would normally be required in such an instance. 

13. However, taking the matters on balance I am persuaded on the balance of probabilities that the subject matter of the proceedings has been brought to the attention of the Respondent in a manner sufficient to accord her natural justice in respect of a further court hearing in relation to the validity of marriage.  She remains at liberty to contact the Court and to advise of her whereabouts, should she wish to participate in the proceedings.  If she does not do so, then I am persuaded that she is sufficiently on notice of the proceedings that they may continue in her absence without further notice to her. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 14 December 2018.

Associate: 

Date:  18 December 2018