Leggara and Oncins

[2018] FamCA 616

FAMILY COURT OF AUSTRALIA

LEGGARA & ONCINS [2018] FamCA 616

FAMILY LAW – PRACTICE AND PROCEDURE – Service – substituted service - where service effected via delivery of documents to respondent’s email address – where respondent taken as having been served – where respondent mother has remained outside Australia in breach of orders – where child has resided in Australia for his whole life up until orders allowed the Mother to temporarily remove him.

Family Law Act 1975 (Cth)

APPLICANT: Mr Leggara

RESPONDENT: Ms Oncins

FILE NUMBER: CAC 2154 of 2017

DATE DELIVERED: 13 August 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 13 August 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Farrar Gesini Dunn

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. Ms Oncins is taken as having been served and on notice of the Application in a Case filed by Mr Leggara on 6 August 2018.

The Court notes that:

(a)Pursuant to the orders of the Family Court of Australia dated 17 May 2018 the Mother, Ms Oncins, date of birth … 1980, (“the Mother”) was required to return the child, X, date of birth … 2015, (“the child”) to the Father, Mr Leggara, born …1977, (“the Father”) in Australia at 5pm on 20 June 2018.

(b)The orders of the Family Court of Australia dated 17 May 2018 do not permit the Mother to retain the child outside of the Commonwealth of Australia after 20 June 2018.

(c)The orders of the Family Court of Australia dated 17 May 2018 are, as of the date of these Orders, enforceable in Australia.

(d)Pursuant to the orders the Federal Circuit Court of Australia dated 18 December 2017 (which remain in force) the Mother and Father have equal shared parental responsibility for the child.

(e)On the evidence of the Father, it appears that the Mother is in breach the orders of the Family Court of Australia dated 17 May 2018 and of the Federal Circuit Court dated 18 December 2017.

(f)The child was born in Australia. 

(g)The child has resided in Australia for his whole life up until orders allowed the Mother to temporarily remove him to Country B for his return to be effected by 20 June 2018.

IT IS ORDERED THAT

1. The Applicant Father's costs of and incidental to today be reserved.

2. The Applicant Father, or the Respondent Mother, have liberty to urgently relist the matter upon the child returning to Australia.

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 Leggara & Oncins 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: CAC 2154 of 2017

Mr Leggara

Applicant

And

Ms Oncins

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an Application in a Case, filed on behalf of Mr Leggara, in relation to his dispute with Ms Oncins in relation to their child, X, born in 2015. 

2. X was born in 2015 in Canberra and has lived in Australia all of his life.  On 17 May 2018 an application was heard before Justice Austin which resulted in there being permission for the Mother to travel with X to Country B in Europe from Monday 21 May 2018 until Wednesday 20 June 2018.  The mother has not returned to Australia and is at present non-compliant with those orders.  She has indicated through Country B lawyers, in correspondence annexed to the Father's affidavit material, that she has no intention of returning to Australia. 

3. The Father today seeks orders for substituted service upon the Mother and I am satisfied that she is on notice of today's proceedings.  She is on notice of today's proceedings in particular as on her Australian lawyers ceasing to act for her they notified that the relevant email address for her is ...  The exhibits show use of that account by the Mother in May 2018.  This, in combination with a notice from the lawyers ceasing to act, provides sufficient justification to assume that the correspondence sent to that email address will be likely to have come to her attention.  Further correspondence was also sent to the persons purporting to be her Country B lawyers. 

4. A combination of these two factors leads me to conclude that the Mother is on notice of today's proceedings.  I take it then that she is on notice of the proceedings and the proceedings may continue in her absence. 

5. The second matter that arises relates to a series of annotations that are sought in aid of the Father's enforcement of the orders made by Justice Austin in the Country B courts.  Those orders anticipated the potential registration of orders made in this Court in the Country B courts.  In order to facilitate that, the Father seeks a series of notations as set out in his Application in a Case.

6. Notations 3.1, 3.2, 3.3 and 3.4 are all matters derived from the Court record or from inference from the Court having made orders.  Notation 3.5, 3.6 and 3.7 may be taken from the affidavit material filed on behalf the Father insofar at least as it establishes that the child was born in Australia and has lived in Australia for all of his life.  The notations will express that particular fact, rather than what is sought at 3.7. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 13 August 2018

Associate: 

Date:  13 August 2018