Maksimova & Inada - [2024] FedCFamC1F 771

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Maksimova & Inada [2024] FedCFamC1F 771

File number(s): [REDACTED]

Judgment of: RIETHMULLER J

Date of judgment: 15 November 2024

Catchwords: FAMILY LAW – NULLITY DECLARATION – PRACTICE AND PROCEDURE – Applicant seeks dispensation of service and to proceed ex parte on an application for final orders – Where applicant alleges danger if respondent is served – Whether dispensing with service would be a denial of procedure fairness – Application to proceed ex parte dismissed.

Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 2.34

Cases cited:
Ansah v Ansah (1977) 2 WLR 760; [1977] 2 All ER 638

Hannan & Tamer [2023] FedCFamC1F 840

International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; [2009] HCA 49

Re: Addison (No. 3) [2021] FamCA 232

Sieling & Sieling (1979) 4 Fam LR 713; [1979] FamCA 23

Stowe & Stowe (1981) FLC 91-027; [1980] FamCA 92

Division: Division 1 First Instance

Number of paragraphs: 12

Date of last submission/s: 18 September 2024

Date of hearing: 29 August 2024

Place: Parramatta

Solicitor for the Applicant: Legal Aid NSW Domestic Violence Unit

The Respondent: No appearance
ORDERS

[REDACTED]

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS MAKSIMOVA

Applicant

AND:
MR INADA

Respondent

ORDER MADE BY:

RIETHMULLER J

DATE OF ORDER:

15 NOVEMBER 2024

THE COURT ORDERS THAT:
1.The Application to dispense with service and proceed on an ex parte basis is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Maksimova & Inada has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J:

The applicant seeks orders dispensing with service of her application for a declaration that the marriage between the applicant and the respondent solemnised in 2013 in Country B is null and void. No attempt has been made to serve the respondent with the Initiating Application filed 7 June 2024. The applicant seeks that the final determination of the Application be made ex parte, that is, without serving or notifying the respondent.
It is not suggested that a process server would be unable to serve the respondent, nor that orders for substituted service would not bring the Application to the respondent’s attention. This…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Maksimova & Inada

Details

AGLC: Maksimova & Inada [2024] FedCFamC1F 771
Case: [2024] FedCFamC1F 771
Decision Date: 15 November 2024

CaseChat Overview and Summary

Ms. Maksimova sought a nullity declaration regarding her marriage to Mr. Inada, applying to the Federal Circuit and Family Court of Australia for dispensation of service and to proceed ex parte on the grounds that Mr. Inada poses a danger if served. The legal issues in this case centered around whether dispensing with service and proceeding ex parte would deny Mr. Inada procedural fairness, given the serious allegations involved. The Court considered the implications of such a decision, including the balance between ensuring safety and upholding procedural fairness. Ultimately, the Court held that dispensing with service would infringe upon Mr. Inada's right to be heard, thus denying him procedural fairness. Consequently, the application to proceed ex parte was dismissed. The Court's decision underscores the importance of procedural fairness in family law matters, even when safety concerns are raised.

Orders

Orders of the court

[REDACTED]

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS MAKSIMOVA

Applicant

AND:

MR INADA

Respondent

ORDER MADE BY:

RIETHMULLER J

DATE OF ORDER:

15 NOVEMBER 2024

THE COURT ORDERS THAT:

1. The Application to dispense with service and proceed on an ex parte basis is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	[REDACTED]
Judgment of:	RIETHMULLER J
Date of judgment:	15 November 2024
Catchwords:	FAMILY LAW – NULLITY DECLARATION – PRACTICE AND PROCEDURE – Applicant seeks dispensation of service and to proceed ex parte on an application for final orders – Where applicant alleges danger if respondent is served – Whether dispensing with service would be a denial of procedure fairness – Application to proceed ex parte dismissed.
Legislation:	Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 2.34
Cases cited:	Ansah v Ansah (1977) 2 WLR 760; [1977] 2 All ER 638 Hannan & Tamer [2023] FedCFamC1F 840 International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; [2009] HCA 49 Re: Addison (No. 3) [2021] FamCA 232 Sieling & Sieling (1979) 4 Fam LR 713; [1979] FamCA 23 Stowe & Stowe (1981) FLC 91-027; [1980] FamCA 92
Division:	Division 1 First Instance
Number of paragraphs:	12
Date of last submission/s:	18 September 2024
Date of hearing:	29 August 2024
Place:	Parramatta
Solicitor for the Applicant:	Legal Aid NSW Domestic Violence Unit
The Respondent:	No appearance

[REDACTED]
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS MAKSIMOVA Applicant
AND:	MR INADA Respondent

ORDER MADE BY:	RIETHMULLER J
DATE OF ORDER:	15 NOVEMBER 2024