MIU & LAI

[2011] FamCA 577

FAMILY COURT OF AUSTRALIA

MIU & LAI [2011] FamCA 577

FAMILY LAW – CHILDREN – Dispense with service – Application dismissed

Child Support (Registration and Collection) Act 1988 (Cth)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Colgate-Palmolive Company v Cussons Pty Ltd [1993] 46 FCR 225

APPLICANT: Ms Miu

RESPONDENT: Mr Lai

INDEPENDENT CHILDREN’S LAWYER: Mr Kingston

FILE NUMBER: BRC 3708 of 2008

DATE DELIVERED: 28 June 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 28 June 2011

REPRESENTATION

THE APPLICANT: No appearance

SOLICITOR FOR THE RESPONDENT: Mr Harris (solicitor) of Family Law Doyle Keyworth & Harris

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Kingston (solicitor) of Norman & Kingston

Orders

1. Pursuant to Rule 7.18 of the Family Law Rules 2004, service of the documents relevant to these proceedings be dispensed with and the proceedings be heard ex parte.

2. The Amended Application filed by the mother on 4 July 2008 is dismissed.

3. The Applicant mother shall pay the costs of the father of and incidental to these proceedings on an indemnity basis.

4. The Applicant mother shall pay the costs of the Independent Children's Lawyer of and incidental to these proceedings as assessed on an indemnity basis.

5. The father shall provide to the mother the orders and reasons for judgment of today by email to her last known email address.

UPON NOTING THAT: Circumstances may arise where it is necessary for the father to make an urgent application for parenting orders to the Court, in particular circumstances where the mother and child return to Australia.

IT IS FURTHER ORDERED THAT

1. In the event that an Application is made by the father for parenting orders, whether urgently, ex parte or otherwise, a copy of that application together with any supporting documentation shall be served on Mr Kingston.

IT IS NOTED that publication of this judgment under the pseudonym Miu & Lai is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC 3708 of 2008

Ms Miu

Applicant Mother

And

Mr Lai

Respondent Father

Ex Tempore

REASONS FOR JUDGMENT

1. This matter started life some three years ago when proceedings were instituted in respect of both financial and children’s orders.  In the intervening time, a number of events have occurred.  Most relevant for present purposes is that earlier orders were made by me pursuant to section 65L of the Act, which, by definition were designed to assist the parties in arriving at arrangements which, hopefully, might result consent with respect to the co-parenting of the parties’ child, K, born … August 2004. 

2. Subsequently, other litigation ensued in other courts.  In 2008 allegations were made of criminal assault of the child at the hands of the paternal grandparents.  What was asserted to be a bruise as a result of an assault was, it transpired, a birthmark known as a “Mongolian spot”.  Unsurprisingly perhaps, early in February 2010 the paternal grandparents were found not guilty of criminal charges brought against them.  About a month later domestic violence proceedings instituted by the mother against the paternal grandparents were withdrawn.

3. Very shortly after the events just described, on 14 May 2010, the mother left Australia with the child for China.  The mother’s travel to China was a unilateral action on her part taken, on the father’s case, without his knowledge or prior consent.  The mother has resided in China since that time. 

4. In the approximately 14 months that the mother has lived in China, the father has made various attempts to speak to the mother and to effect service of process upon her. 

5. On 7 March 2011 the father travelled to China.  Although he was able to speak to his son and to the mother’s parents, he was unable to speak to the mother.  He has been unable to ascertain where the mother and child are living, either during that visit or since.

6. It is said that, at the time of that visit, the father made the mother aware, in general terms, of the nature of proceedings which he intended to pursue in this Court.  It is to be observed that the People’s Republic of China is not a signatory to the International Convention relating to the abduction of children. 

7. The father, at that time, was made aware of an email address at which it was said that the mother could be contacted.  Since that time, documents filed in these proceedings, including the current Application in a Case filed by the father, have been forwarded by his solicitors to that email address.  At no time has any response been received, either to those communications or, indeed, any other communication to that email address.  But, the father says that he has no reason to suspect that the mother is not receiving communications forwarded to that email address. 

8. It is the Wife’s application for property and parenting orders that commenced the process in this Court.  The husband has responded to it.  At present, the inter-relationship between the parties, insofar as co-parenting is concerned, are governed by consent orders made earlier by me but which, of course, have no practical effect given the mother’s actions in taking the child to China, and remaining there since. 

9. The father seeks orders from this Court consequent upon the mother’s actions. 

10. His Application in a Case, filed 31 March 2011, seeks an order for substituted service and an order that the Amended Initiating Application for both parenting and financial relief filed by the mother on 4 July 2008 be dismissed. 

11. The application also seeks orders pursuant to section 111C of the Child Support (Registration and Collection) Act 1988 (Cth). Various jurisdictional and other issues attend that application. Those orders are not pursued at the present time by the father.

12. Although the Application seeks, in terms, an order that the Amending Application filed by the mother be dismissed, the written outline filed on behalf of the husband on 27 June 2011 seeks an order that those proceedings for parenting orders be adjourned for a period of 12 months.  I will return to that issue in a moment. 

13. I should observe that the solicitors for the father and the independent children’s lawyer have each helpfully filed written submissions in respect of the current application. 

14. The independent children’s lawyer in those submissions submits that where the mother has:

    o   voluntarily absented herself and the child from this jurisdiction;

    o   failed to prosecute her application for spousal maintenance, property and children’s orders;

    o   failed to provide her solicitor with instructions; and

    o   failed to notify the father’s solicitor or, indeed, the Court, of her intentions with respect to the proceedings or, more generally, that the orders sought by the father should be made on an ex parte basis.

15. As is evident from the material filed in these proceedings, that application has substance.  At earlier appearances before me, however, I indicated generally that I intended to proceed cautiously and to attempt to afford the mother the opportunity to participate in proceedings should she so choose.  To that effect, I indicated to the solicitors for the father that, prior to taking the serious step of making orders which would dismiss applications without hearing from the mother including, in particular, an application for parenting orders, that attempts ought be made to serve the mother or, at the least, give notice to her of these proceedings. 

16. Each of Australia and the People’s Republic of China are signatories to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (1965). 

17. Regulation 12 of the Family Law Regulations provides for service in countries that are parties to the convention to which I have just made reference.  The methodology there referred to is a methodology that is designed, upon appropriate proof, to be effective service for the purposes of the law of Australia.

18. The solicitors for the father depose to certain inquiries that have been made with respect to difficulties that might attend the process contemplated by the Regulation. 

19. In particular, they point to the fact that the address of the mother in China is unknown and that the Commonwealth Attorney-General’s Department has advised that, in the ordinary course, service would take place through diplomatic channels and regularly takes many months before it might be effected. 

20. There are other matters deposed by the solicitors for the father including advice about difficulties that might attend service upon Chinese nationals.  Although the mother is, in fact, an Australian citizen and holds an Australian passport, one might easily imagine that, in a country of a billion people, a person of Chinese origin might, nevertheless, be able to satisfy relevant officials that she was, in fact, a Chinese citizen. 

21. It is unnecessary to further refer to those speculative matters because it seemed plain that the father is not, despite his best efforts, in a position to advise relevant officials of any address at which the mother and child might be living. 

22. It seems, then, highly likely that any attempt to serve the mother in accordance with regulation 12 would be attended with profound difficulties. 

23. In any event, by reference to the matters earlier referred to, it seems to me tolerably clear that the mother is likely to have notice of the orders sought to be made by the father and the material relied upon by him in respect of that application. 

24. In that respect, the solicitor for the father advises that the written outline of submissions on behalf of the father filed 27 June 2011 has also been sent to the mother electronically in the manner earlier referred to.  Those submissions specifically refer to rule 11.06 and the relief sought by the father, and to the specific orders sought by the father in relation to the child.

25. I should also add that the father deposes to the fact that the mother reads, writes and understands English. 

26. It seems to me tolerably clear that there is a high likelihood that the mother is aware of the proceedings.  I consider that the father has taken all reasonable steps as are available to him to give the mother notice of the proceedings and the relief sought by him and, indeed, the arguments sought to be advanced by him in support of the relief which he seeks. 

27. I think it likely that the wife is aware of the proceedings and the orders sought by the husband but, even if she is not, I am persuaded that the requirements of the Rules or Regulations, as the case may be, in relation to service ought be dispensed with in this case. 

28. By reference to all of the circumstances to which I have earlier referred, including, in particular, the fact that the mother has absented herself from the jurisdiction unilaterally and without notice to the father and has not sought to make either the Court or the father aware of her address or circumstances and, more generally, in the time since, I consider that order should be made.

29. I find, then, that the father has used his best endeavours to attempt to bring to the notice of the mother the orders that he seeks and the basis for those orders, that he has attempted to serve those documents in a manner consistent with his knowledge of the mother’s whereabouts and that to the extent that the mother is unaware of those proceedings, I find that the proceedings should proceed in her absence.

30. The effect of that order is to deem, pursuant to rule 7.18(3), that the document is taken to have been served and, accordingly, that the wife has had notice of the proceedings and had the opportunity to respond to the material, should she so choose.

31. As to the substance of the application itself, dealing firstly with the application by the wife in respect of financial orders, the husband relies upon Rule 11.06 which provides that: 

    In circumstances where a party has not taken a step in a case for a year, the Court may dismiss all or part of the case.  In those circumstances, if the party is ordered to pay the costs of another party, and before the costs are paid the party ordered to pay them starts another application on the same or substantially the same grounds, the other party may apply for the case to be stayed, until the costs are paid.

32. It seems to me that the preconditions for the application of rule 11.06 are plainly satisfied by reason of the circumstances earlier identified. The general rule in family law proceedings in respect of costs is provided by section 117(1) of the Act.  That provides that: 

    Each of the parties to the action shall bear their own costs, unless the Court is satisfied by reference to the matters contained in subsection 2A of that section an order for costs is appropriate. 

    There is very little information before me about the financial circumstances of either of the parties. 

33. The evidence is that the husband is not in receipt of legal assistance.  Plainly enough that circumstance is not relevant to the wife’s current circumstances. 

34. It seems to me that the conduct of the wife in and about these proceedings must be seen to include her unilateral actions in removing herself and the child from Australia to a country overseas and, in particular, to a country that has associated with it the difficulties in relation to service and the like to which I have just referred. 

35. Similarly, it seems to me that the proceedings before me can be seen to have been necessitated by the failure of the party to comply with orders of the Court, albeit that they are procedural orders relating to attempts to have this matter progressed to resolution or final trial.

36. In all of the circumstances, it seems to me that it is appropriate to order that the wife pay the husband’s costs of and incidental to the application in the case filed by him. It will be plain from the circumstances earlier outlined that I consider the prospects of the father obtaining that order are, indeed, remote.  However, that does not, to my mind, provide a good reason not to make the order, and all the more so when the provisions of rule 11.06(3) are taken into account.  With reference to section 117(2A)(g) of the Act, I also have regard to the provisions of rule 11.06(3). 

37. It seems to me entirely appropriate that any application for financial relief or parenting orders by the wife should be stayed until such time as the costs which are otherwise ordered to be paid by the wife are paid.  While the mother would, as a result, be precluded from filing applications in the Court until such time as the costs are paid, the father would be free to do so should same be necessary in the future. 

38. I have indicated that the father, contrary to the orders set out in his application, seeks an order that the application with respect to mother’s application with respect to parenting orders be adjourned for 12 months. 

39. The reason for seeking that order (as distinct from an order that the application being dismissed) is, it is said, that circumstances might arise where the father would wish to institute proceedings to vary orders, including on an urgent basis.

40. An example is if the husband was to become aware that the wife had returned to Australia, he would, he says, urgently seek orders from the Court in relation to her future travel outside of Australia, and parenting orders with respect to the child.

41. It seems to me preferable that the wife’s application be dismissed.  That will necessitate the need for her to file a fresh application should she wish to pursue those, or other, orders in this Court, and her position in that respect is curtailed, as in my view it should be, by rule 11.06(3) by reason of the orders for costs previously made by me. 

42. Insofar as the father’s position is concerned, it seems to me he suffers no prejudice as a result because it is entirely open to him to make an urgent application to the Court including, if the required unusual and exceptional circumstances of the case properly warrant it, an ex parte application, should an urgent need arise in circumstances similar to those just exemplified.

43. Rule 11.06 refers to the dismissal of “all or part of” a case.  In the circumstances relevant to that Order reference is made to the Court ordering that an act be done within a fixed time in default of which the parties’ application will be dismissed.  I consider that the whole of her case should be dismissed forthwith.

44. Costs are sought by the husband on an indemnity basis.  The basis upon which costs might be awarded on an indemnity basis, if the circumstances are said to justify an order for costs pursuant to section 117(2A), have been referred to in decisions such as Colgate-Palmolive Company v Cussons Pty Ltd [1993] 46 FCR 225 and earlier authorities of the Full Court in this Court which have adopted the principles set out by Sheppard J therein.

45. It’s submitted by the solicitor for the husband and by the independent children’s lawyer that the circumstances here might be seen to be exceptional within the meaning of that expression as used in those cases.  The mother has, it is said, chosen to flagrantly ignore Court proceedings that were pending at the time of her departure for China; that she has not sought to put any material whatsoever before the Court, nor to advise the Court of her current whereabouts or other circumstances, nor to respond to any communications forwarded by the solicitors for the father or, indeed, the independent children’s lawyer. I am satisfied costs should be awarded on an indemnity basis.

46. The independent children’s lawyer makes application to the Court for costs, consequent upon a perceived duty to do so, pursuant to the Legal Aid Queensland Act 1997 (Qld).

47. It is submitted that, so as to give practical effect to any such order, a Sanderson order should be considered. This would see the husband pay the costs of the independent children’s lawyer, but be indemnified in respect of that by the wife. 

48. It seems to me that the husband has been put to very significant time, trouble and expense in attempting to afford to the wife natural justice essentially out of an abundance of caution exercised by the Court in and about her rights.  The independent children’s lawyer has, as it were, been caught up in that process through no fault of the husband’s.  

49. I consider that it would be unjust to order the husband to bear the burden of any costs payable to the independent children’s lawyer in that respect, particularly when there is little likelihood of costs being recovered from the wife.

50. In the circumstance of this case, it is noted that circumstances may arise where it is necessary for the father to make urgent application to the Court, in particular, in circumstances where the mother and child returns to Australia - a notation will be made to that effect. 

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 28 June 2011.

Associate: 

Date:  25 July 2011