Mousa & Kamil (No. 3)

[2020] FamCA 787

FAMILY COURT OF AUSTRALIA

Mousa & Kamil (No. 3) [2020] FamCA 787

File number(s):

CAC 525 of 2017

Judgment of:

GILL J

Date of judgment:

17 September 2020

Catchwords:

FAMILY LAW – Undefended hearing – where the Mother has not participated in the proceedings – where the Mother is adequately on notice of the Father’s application 

Legislation:

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth) r 7

Number of paragraphs:

13

Date of hearing:

17 September 2020

Place:

Canberra

Solicitor for the Applicant:

Phelps Reid Foster Johnson

Solicitor for the First Respondent:

Dobinson Davey Clifford Simpson

Solicitor for the Second Respondent:

Self Represented

Solicitor for the Independent Children's Lawyer:

Jeanine Lloyd & Associates

ORDERS

CAC 525 of 2017

BETWEEN:

MR MOUSA

Applicant

AND:

MR YAMAN

First Respondent

MS KAMIL

Second Respondent

JEANINE LLOYD & ASSOCIATES

Independent Children’s Lawyer

ORDER MADE BY:	GILL J
DATE OF ORDER:	17 SEPTEMBER 2020

THE COURT ORDERS THAT:

1. That the Mother is adequately on notice of Mr Mousa's Application today and of the potential for that Application to proceed on an undefended basis and of the scope of Mr Mousa's Application and orders that he seeks in respect of Y. 

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mousa & Kamil has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

GILL J

1. Orders were made on 18 August 2020 requiring the Applicant Father, Mr Mousa to serve by special service upon the Mother an Amended Initiating Application or Response, a copy of the Orders of 18 August 2020. 

2. Subsequent to those Orders being made in relation to special service, Mr Mousa approached the Registrar of the Court and obtained Orders in relation to substituted service and an Order deeming that service had taken place upon the Mother.

3. A term of the orders made on 18 December 2020 was as follows:

   11Ms Kamil is to forthwith file and serve a Notice of Address for Service

   12Ms Kamil is to forthwith file and serve a reply to the amended Initiating Application to be filed by Mr Mousa and a reply in respect of the amended response to be filed by Mr Yaman in relation to the orders that she seeks for X and for Y.

   13Ms Kamil is to attend at the next listing of the matter via Microsoft Teams.

4. Notation 10 was in the following terms:

   10Ms Kamil is placed on notice that if she fails to file a Notice of Address for Service or response in relation to amended Initiating Application filed by Mr Mousa or response filed by Mr Yaman, then the proceedings may continue in her absence and final orders may be made in respect of Y and X.

5. Noting that the Mother was not served as specified in the Orders by special service, a question arises as to whether or not the Mother has been properly placed on notice of the proceedings today and of the fact that the proceedings may go ahead in her absence, and of the fact that if the proceedings do go ahead in her absence, as to the nature of the orders that may be made by the Court. 

6. Ms Davis, counsel, has set out the evidence as it pertains to the Mother being on notice of Mr Mousa's Application and of today's proceedings.  She relies upon the affidavit of Mr Mousa dated 3 September 2020 which has annexed to it a number of text messages between Mr Mousa and between the Mother in relation to the Mother being provided with the stipulated Court documents. 

7. She further relies on an affidavit the same day by Ms G, one of the staff at Mr Mousa’s solicitor’s firm, who annexes the email and covering letter which sets out what material was being forwarded to Ms Kamil.  She specifies that on 26 August 2020, she emailed to Ms Kamil the Amended Initiating Application Mr Mousa filed on 25 August 2020 along with the Orders that I made of 18 August 2020, and an Acknowledgement of Service Document.  In addition, there is a covering letter from that law firm that observed the following matters:

   (a)That Ms Kamil had declined to provide a residential address for the purposes of service;

   (b)That they noted that the matter was before the Court on 17 September and drew Ms Kamil’s attention specifically to Orders 10 to 13 requiring her to file material with the Court and to attend the hearing.

8. It was apparently in response to this email that the SMS exchange referred to at Annexure A of Mr Mousa’s affidavit dated 3 September 2020 took place.  The nature of the SMS exchange indicates that the Mother received the documents as outlined by Ms G.  This is also consistent with a telephone conversation that Ms G asserts that she had with a person purporting to be the Mother, on a telephone number that had previously been provided by Mr Mousa.

9. The receipt of those documents is further supported in the affidavit of the Father of 10 September 2020 at [39] where he outlines a telephone call between himself and the Mother on 31 August 2020, which again functions as an acknowledgement on the part of the Mother that she had received the documents.

10. Finally, Mr Mousa relies upon a conversation reported by Mr Yaman as occurring between himself and the Mother set out at [18] of his affidavit of 15 September 2020.  Again, in that conversation with Mr Yaman, the Mother acknowledges having received the material from the Father.  As indicated by Ms Davis, there is therefore evidence of conversations between the Mother and three different persons, indicating that she had received the material ordered to be served upon her.  Additionally, there is SMS material making the same acknowledgement. 

11. Ms Davis also points to Orders made by the Registrar on 4 September 2020 deeming the Mother to have been served on 1 September 2020 pursuant to r. 7 of the Family Law Rules. 

12. Accordingly, I am satisfied that the Mother is adequately on notice of Mr Mousa's Application today and of the potential for that Application to proceed on an undefended basis and of the scope of Mr Mousa's Application and orders that he seeks in respect of Y. 

13. Note – The Mother attended the proceedings by Microsoft Teams shortly after the making of this Order.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

Associate:

Dated:       22 September 2020