KB & TC
[2010] FMCAfam 1109
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KB & TC | [2010] FMCAfam 1109 |
| FAMILY LAW – Children – contravention of parenting orders – two children of the marriage – one now an adult – where parenting orders discharged before contravention application commenced. FAMILY LAW – Child maintenance – Enforcement Summons – where no details of amount claimed included in the summons – directions to file and serve amended summons. PRACTICE & PROCEDURE – Application – address for service – where applicant has not given an address for service – application states “no fixed address” and a mobile telephone number and email address – directions to file and serve amended application. |
| Family Law Act 1975, s.65H Family Law Rules 1984, O.33 Federal Magistrates Court Rules 2001, rr.6.01, 6.06, 6.07, 10.01, 13.03A, 13.03B, 25B, Sch. 5 |
| Applicant: | KB |
| Respondent: | TC |
| File Number: | SYC 5379 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 5 October 2010 |
| Date of Last Submission: | 5 October 2010 |
| Delivered at: | Sydney |
| Delivered on: | 5 October 2010 |
REPRESENTATION
| Solicitor for the Applicant: | Ms Cole appeared as Duty Lawyer |
| Solicitors for the Applicant: | No solicitor on record |
| Solicitors for the Respondent: | No solicitor on record |
ORDERS
The Applicant must file and serve an amended Application – Contravention (Form 18):
(a)Giving an address for service within Australia; and
(b)Setting out the dates of the Orders said to have been contravened and the dates on which the Respondent is said to have contravened the said orders;
by 26 October 2010.
The Applicant must file and serve an amended Application in a Case (Form 2) giving an address for service in Australia by 26 October 2010.
The Applicant must file and serve an amended Enforcement Summons (Form 46):
(a)setting out in paragraph (1) the particulars of the Order or Orders giving rise to the requirement by the Respondent to pay a sum or sums of money, the name of the person to whom the sum or sums of money are required to be paid and the names of the person or persons for whose benefit the sum or sums of money are required to be paid; and
(b)setting out in paragraph (2) the amount of the default or arrears claimed as at the date of the summons
by 26 October 2010.
The proceedings are re-listed to 2 November 2010 at 11:30am for further mention and the Applicant is granted leave to amend the return date on the Applications and Enforcement Summons.
IT IS NOTED that publication of this judgment under the pseudonym KB & TC is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5379 of 2010
| KB |
Applicant
And
| TC |
Respondent
REASONS FOR JUDGMENT
Application
The Applicant has filed the following documents:
a)An Application in a Case seeking orders for:
i)Payment of arrears of child maintenance in the sum of $50,228.00;
ii)An order for compounding interests on the unpaid maintenance; and
iii)A claim for compensation caused by the non-payment in the sum of $2,000.000.00.
b)An Enforcement Summons seeking that the Respondent attend Court on 5th October 2010 to be orally examined; and
c)A contravention application seeking that the Respondent be dealt with for contravention of the following Orders made by the Family Court of Australia at Sydney:
i)Interim orders made by Rowlands J on 18th March 2005; and
ii)Final orders made by Le Poer Trench J on 16th January 2008.
The orders relate to the parties’ two children, [X] and [Y]. The orders of 18th March 2005 include orders for child maintenance and urgent spousal maintenance. The orders of 16th January 2008 include a limited child maintenance order.
The Respondent resides in Japan.
The Content of the Orders
It is unnecessary to go too deeply into the content of the orders sought by the Applicant Mother on the first court date, as this decision mainly concerns the necessity to correct fundamental defects in the form of the applications which, if not remedied, would be of such a nature as to lead to the applications being stayed or dismissed, either wholly or in part.
However, it is apparent from the outset that some of the Applicant’s claims for relief have no reasonable prospect of success. The Applicant may wish to obtain legal advice about the advisability of continuing those claims for relief.
In her application in a case, filed on 26th August 2010, the Applicant seeks this order:
3. Damages claim compensation payment for dire repercussions caused by non-payment of Court ordered child maintenance = $2,000,000 for loss of business, loss of family home of 18 years & loss of health all directly attributed to blatant contraventions to orders.
It is doubtful, to say the least, that the Court has the jurisdiction under the Family Law Act to make this order.
The Contravention application appears to seek the enforcement of some of the interim orders made by Rowlands J on 18th March 2005. Those orders were discharged by the orders made by Le Poer Trench J on 16th January 2008 and are unenforceable by an application filed 2010.
It is also noteworthy that one of the children to whom the parenting orders of 16th January 2008 relate, [X], was born [in] 1991. Thus, he turned 18 years of age and therefore became an adult [in] 2009. A parenting order in relation to a child stops being in force if the child turns, 18, marries or enters into a de facto relationship (Family Law Act 1975, s.65H(2)).
Defects in Form
The immediate task facing the Applicant, however, is to remedy the defects in the form of her documents so that the matter can proceed. The various applications should not have been accepted by the Registry for filing in their present state.
The Contravention Application and the Application in a Case both give the Applicant’s address for service as:
No fixed address and a mobile telephone number and an email address.
That is not an acceptable address for service. Rule 6.01 of the Federal Magistrates Court Rules 2001provides:
(1) A party to a proceeding must give an address for service.
(2) A party may give an address for service;
(a)by filing a relevant document that includes an address for service; or
(b)by filing a notice of address for service in accordance with the approved form.
(3) An address for service:
(a) must be an address in Australia; and
(b)must include a telephone number at which the party may be contacted during normal business hours; and
(c)may include a fax number or an email address for the party.
The Applicant has complied with subparagraphs (3)(b) and (c) by providing a telephone number and an email address, but she has not provided an address in Australia for service of documents on her. If she is in fact without a current residence in Australia, that address for service could be the address of a solicitor authorised to accept service of documents on her behalf, or the address of a friend or relative.
However, the Applicant cannot give her address for service as “no fixed address”, because that is not an address at which documents can be served.
The Enforcement summons filed on the same date is incomplete in that paragraphs 1 and 2 have not had any of the blank parts completed. Paragraph 1 must state:
a)whether the payment to be enforced derives from a Court order, or a maintenance agreement, or a debt for an amount of child support under a notice of assessment given to the respondent under section 76 of the Child Support (Assessment) Act 1989;
b)the identity of the person to whom the payment was required to be paid, and when;
c)the name or names of the persons for whose benefit the payment was required to be made.
Paragraph 2 must state the amount which is in arrears or default.
None of this information has been inserted. It is no answer to say that the Respondent could ascertain this information by means of a diligent search of the plethora of documents supplied in support of the summons.
The procedure for issuing an Enforcement Summons is covered by Order 33 of the Family Law Rules 1984, which is applied by virtue of rule 25B.05 of the Federal Magistrates Court Rules in the modified form set out in Schedule 5 to the Rules.
Order 33 Rule 3(1) provides that the Applicant for a summons must file an affidavit requesting the issue of an enforcement summons. Subrule (1A) must contain evidence in support of the request, must state whether any other order is in force for the enforcement of the obligation and must also state whether any proceedings for the enforcement if the obligation are pending. The Applicant has filed a lengthy affidavit which goes part-way towards doing so in paragraphs [6] to [8], [19], [20], [28] and [29].
However, the Enforcement Summons itself is clearly defective and should not have been issued by the Registry in that form.
The Contravention Application is incomplete in that the form does not state which order on which date the Respondent is said to have contravened. However, the Applicant has sought to clarify that situation in paragraphs [5] to [8] and [19].
The application provides a box in paragraphs (6) and (8) of the form to show which order is said to have been contravened. The Applicant ahs done that but has not set out the date of the order, as she is attempting to enforce two sets of orders.
The boxes in paragraphs (7) and (9) of the application requires the Applicant to set out the date and the time (if known) of the act or omission that is said to constitute the contravention. In most cases this appears not to have been done.
What the Rules Require
Rule 13.03A provides that an applicant is in default if the Applicant does not (inter alia) file and serve a document required under the Rules or do any act required under the Rules.
Rule 13.03B gives the Court to order that step in the proceeding be taken within the time limited by the order and, if the Applicant does not take that step, the Court may stay or dismiss the whole or any part of the relief claimed by the Applicant.
In order to allow the Applicant an opportunity to get her applications and summons in proper form, I propose to make directions for filing amended Applications and an Enforcement Summons and then to serve those documents on the respondent at his address in Tokyo (Rule 10.01). As the Applicant is starting a proceeding, the application should normally be served by hand (Rule 6.06), but not by the Applicant herself (Rule 6.07).
In this case, however, the Applicant took it upon herself to attempt to serve the documents by:
a)Serving copies on the Respondent’s former lawyers; and
b)Sending copies to the Respondent at his address by registered post.
The Respondent has sent an email to the Court advising that he has in fact received the Enforcement Summons. It appears from the text of the email that he has received copies of the other documents as well.
In his email to the Court, dated 04/10/2014, the Respondent says:
Dear Sir/Madam,
I have received an Enforcement Summons, form 46, to appear before your court on the 5th of October at 10:00.
Unfortunately, as I currently reside in Tokyo, Japan, I wish to inform you that it is not possible for me to be attend[1] any Court hearings at that date or in the future.
Furthermore, I would like to suggest that the allegations made by KB[2] are false, irrelevant and outdated. The most important issue that concerns me is the welfare of our two boys and I can confirm to you that both [X] (aged 18 years old) who is studying at [omitted] in Sydney and [Y] (aged 16 years old) who is studying at [omitted] School, are totally under my financial care and are under no financial stress.
Contrary to what is being alleged, [Y] can be contacted at any time (outside school hours) on his mobile phone +81[3] or through Skype. Although I am under no obligation to do so after [Y] turned 16, I send [Y] to Australia during his Christmas and summer breaks so as to spend as much time as possible with his mother and brother.
Should you wish to receive any further clarification from me, please do not hesitate to contact me by email or mobile phone (+81[4]).
Sincerely yours,
[1] Sic
[2] i.e. the applicant
[3] Telephone number not printed – 81 is the country code
[4] Telephone number not printed
TC
In the circumstances, it appears that the Respondent has been served, although he is reluctant to participate in the proceedings.
The applications and summons will need to be relisted. The Applicant seeks the first available date, so I have relisted the proceedings at 11:30am on Tuesday 2nd November 2010. The Applicant will need to file and serve amended applications and an amended Enforcement summons before the matter can proceed further.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 7 October 2010
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