Maksimova & Inada
[2024] FedCFamC1F 771
•15 November 2024
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 is not a case where the applicant seeks to establish that there is no method available to serve or notify the respondent of the Application.
The applicant deposes to her fears for her safety in the event that the respondent is notified of the proceedings. She claims that he has close ties to family members who are involved in criminal activities and who have access to weapons. For the purpose of this Application, it is sufficient to proceed as if the applicant is able to make out her claims with respect to risks to her safety.
Procedural fairness is a fundamental incident of judicial power. In order to make orders affecting the rights of a person it is necessary that they be provided with a real opportunity to be heard. It is this principle that underlies the requirements for personal service of initiating applications that are set out in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). As French CJ said in International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319 at [54]:
Procedural fairness or natural justice lies at the heart of the judicial function. In the federal constitutional context, it is an incident of the judicial power exercised pursuant to Ch III of the Constitution. It requires that a court be and appear to be impartial, and provide each party to proceedings before it with an opportunity to be heard, to advance its own case and to answer, by evidence and argument, the case put against it. According to the circumstances, the content of the requirements of procedural fairness may vary. When an ex parte application for interlocutory relief is made the court, in the ordinary course, has a discretion whether or not to hear the application without notice to the party to be affected. In exercising that discretion it will have regard to the legitimate interests of the moving party which have to be protected, whether there is likely to be irrevocable damage to the interests of the affected party if the order is made, and what provision can be made for the affected party to be heard to have the order discharged or varied after it has been made...
In some cases a person is unable to be served as they are in hiding or avoiding the process server, hence there are rules for substituted service. In very rare cases it may be shown that there is no method of even bringing the proceedings to the notice of the other party (for example, if they are missing and presumed dead or they are a member of an enemy force in wartime).
It is sometimes necessary to hear interim or interlocutory applications without notice to the person who will be affected by the order to ensure that the subject matter of the litigation (or important evidence) is not destroyed. As identified in Ansah v Ansah (1977) 2 WLR 760 at 764 (approved in Sieling & Sieling (1979) 4 Fam LR 713 and Stowe & Stowe (1981) FLC 91-027):
Orders made ex parte are anomalies in our system of justice which generally demands service or notice of the proposed proceedings on the opposite party: see Craig v. Kanseen [1943] K.B. 256, 262. Nonetheless, the power of the court to intervene immediately and without notice in proper cases is essential to the administration of justice. But this power must be used with great caution and only in circumstances in which it is really necessary to act immediately …
The order that was made in this case is quite unacceptable for another reason. If an order is to be made ex parte, it must be strictly limited in time if the risk of causing serious injustice is to be avoided. The time is to be measured in days, i.e., the shortest period which must elapse before a preliminary hearing inter partes can be arranged, and the order must specify the date on which it expires. (If difficulty in serving the other party is anticipated it may, exceptionally, be permissible to fix a longer period and to provide in the order that the other party may apply on 24 hours' notice to discharge the injunction.)
In Hannan & Tamer [2023] FedCFamC1F 840, the applicant sought a declaration of nullity on the basis that their consent to the marriage had been obtained by duress and sought that the application proceed ex parte, on the basis that this was necessary to protect their life and safety. Justice Carter declined to dispense with service, saying:
45 The applicant sought final relief – being a declaration that the marriage was invalid and void – be granted on an ex parte basis. If I agreed to that application, the respondent would not know of the declaration sought by the applicant, or the basis for it. He would never be given an opportunity to be heard in relation to the application.
46Moreover, if I granted the relief sought, that would alter the marital status of the respondent in circumstances where he had not been put on notice, or been heard. If service was also dispensed with, the respondent would not even know his marital status had been altered after the fact. He would never know the outcome of the proceedings, or that they had ever been brought.
47As already observed, the applicant wants the marriage declared invalid, on the basis they say they never consented to the marriage, and were forced to enter the marriage after enduring significant physical and emotional abuse from their family. The allegations made by the applicant are extremely significant, and as indicated, if the matter proceeded ex parte, the respondent would be unable to adduce evidence to the contrary. Rather, he would be deprived of the opportunity to present his own evidence as to the circumstances surrounding the marriage.
48Moreover, if the declaration is ultimately made, the respondent’s marital status – at least under Australian law – would be altered without him having any opportunity to participate in these proceedings, to make submissions or present evidence. That would, in my view, amount to a serious denial of procedural fairness.
The applicant sought to distinguish Hannan & Tamer on its facts, however her Honour’s reasons apply equally to this Application. The very difficulties identified by Carter J would occur here if the court were to dispense with service on the respondent.
In Re: Addison (No. 3) [2021] FamCA 232 Howard J (when considering whether a medical procedure application could proceed to final determination without joining the father as respondent or serving him with the Initiating Application) refused to make final orders without notice to the father. His Honour noted:
28In the cases of Sieling and Kennedy, and in the other cases cited about – the Court in each instance was considering interlocutory applications only. That is, applications for interim orders as opposed to final orders. There is a significant difference between a party coming to the Family Court of Australia seeking an urgent ex parte interim order as opposed to a party coming to the Court and seeking an ex parte final order.
(Emphasis in original)
Whilst the applicant was unable to point to a judgment that supported her Application, she relied upon a decision by a registrar to grant a divorce in a matter for which she provided a file number (although no copy of the reasons). However, in that case, service had been dispensed with prior to the grant of the divorce, presumably because it was not possible to find the respondent overseas, let alone contact him. In the absence of reasons, the grant of the divorce in that case provides no assistance.
I am not persuaded that it is open to the court to dispense with service in a Nullity Application (which will impact upon the marital status of the respondent) in circumstances where the respondent could be served. I note that it would be open to the applicant to seek leave to redact any information that would identify her location or enable contact with her, if this was necessary to ensure her safety. As the court is a national court that can hear applications by audio visual links, the applicant would be able to file her Application in a different registry area or even a different State, if there is concern that the place of filing may provide information from which to locate her.
The Application for service to be dispensed with and to proceed on an ex parte basis must be dismissed.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 15 November 2024
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