Legh and Rinalds

[2020] FamCA 147

FAMILY COURT OF AUSTRALIA

LEGH & RINALDS [2020] FamCA 147

FAMILY LAW – PRACTICE AND PROCEDURE – dispense with service

Family Law Act 1975 (Cth) s 12A
Family Law Rules 2004 (Cth) r 7.18

APPLICANT: Ms Legh

RESPONDENT: Ms Rinalds

INDEPENDENT CHILDREN’S LAWYER: Ms Orczykowski

FILE NUMBER: CAC 348 of 2019

DATE DELIVERED: 10 March 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 10 March 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Jeanine Lloyd & Associates

SOLICITOR FOR THE RESPONDENT: Self-representing

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Boland Legal Family Lawyers

Orders

1. Service upon the father of X, namely Mr C, is dispensed with.

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 Legh & Rinalds 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 348 of 2019

Ms Legh

Applicant

And

Ms Rinalds

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is an application for final parenting orders vesting sole parental responsibility and sole care of X in Ms Legh.  Ms Legh is not X's mother, but X has lived with her for the whole of his life.  X is now a little over two years old.

2. The orders are agreed to by X's mother, Ms Rinalds, who is present in Court. 

3. At the commencement of the proceedings there was confused evidence about who X's father is.  X's father is not involved in those proceedings.  He was identified on the last occasion as Mr C.  Evidence was given that he has had no contact with X, does not know of X and that X was conceived as a result of a sexual assault by Mr C upon Ms Rinalds.  

4. Pursuant to previous directions and with the assistance of information that was provided by Ms Rinalds, steps were taken to serve Mr C to place him on notice of these proceedings. Those steps were to no avail.  They included the consultation with the Australian Electoral Commission under a number of different variations of Mr C's name, along with searches on Google and Facebook.  Those were unable to identify such a person.  The question then arises as to whether or not service should be dispensed with. 

5. Rule 7.18 of the Family Law Rules 2004 deals with dispensing with service, of the considerations that the Court may have regard to, it is r 7.18(2)(b), (c) and (e) that are relevant.

6. The first is as to whether all reasonable steps have been taken to serve the document or bring it to the notice of the person to be served.  I have identified above the steps that have been identified to have been taken, no other steps have been identified on the information before the Court.  It may be thought that there could be other steps taken to serve Mr C, such as the issuing of subpoenas directed to various public authorities, but these are highly speculative.  It may be inferred that all currently identifiable reasonable steps have been taken to attempt to serve Mr C. 

7. There is no reason to think that he may become aware of these proceedings. 

8. In examining the nature of the case, it can be observed that it deals with a serious subject matter of parental responsibility and parental relationships for X.  This seriousness cuts in two directions.  Firstly, what is being pursued would result in the termination of any parental responsibility held by Mr C.  This is a very serious matter.  On the other hand, procuring stable ongoing circumstances, if that is in fact what X is faced with in the hands of Ms Legh is a very important end.  In pursuing such an end, in the absence of Mr C, there is a need for caution in assessing what is put before the Court due to the ex parte nature of the proceedings. 

9. A further matter was identified by the solicitor for the applicant.  She correctly observed that final parenting orders, even though they might be final, can never be considered as absolutely final.  If it were the case that Mr C subsequently became aware of these orders, then he would have the capacity to make an application to the Court.  The Rules specifically provide for such circumstances where a party was not present where final orders are made. 

10. Considering these matters on balance, bearing in mind the content of division 12A of the Family Law Act 1975 which tells me the principles that I must take into account in conducting child related proceedings and in concluding that principles 1 and 3 have particular application, it may be observed that in considering X's needs and the impact of proceedings upon him, it is very much in his interest to promptly consider the arrangements for his care, welfare and development and that ongoing delay has the potential to undermine his currently stable circumstances. There is a need to protect, in particular Ms Rinalds, from prospects of family violence noting the alleged assault upon her by Mr C. Then on balance, considering the need to resolve X's circumstances are relevant to his care, welfare and development, noting the capacity to revisit orders then despite the inability to serve the father, the proceedings should move to finalisation and I determine that it is appropriate to dispense with service.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 10 March 2020.

Associate: 

Date:  10 March 2020