PENNA & LANZA

[2014] FCCA 278

FEDERAL CIRCUIT COURT OF AUSTRALIA

PENNA & LANZA [2014] FCCA 278

Catchwords:
FAMILY LAW – PRACTICE & PROCEDURE – Substituted service – order that mother also post notice of next court event on father’s Facebook page.

Legislation:  

Family Law Act 1975, Part VII, s.67Q
Federal Circuit Court Rules2001, Division 6.4, rr.6.14, 6.15

Applicant: MS PENNA

Respondent: MR LANZA

File Number: BRC 273 of 2011

Judgment of: Judge Purdon-Sully

Hearing date: 7 February 2014

Date of Last Submission: 7 February 2014

Delivered at: Brisbane

Delivered on: 7 February 2014

REPRESENTATION

Solicitors for the Applicant: R A Solicitors

Solicitors for the Respondent: No appearance

ORDERS

1. That the following documents be served upon the father by posting by certified mail to the father’s addresses of (omitted), Queensland and the paternal grandmother’s address of (omitted), Queensland:

   (a)Initiating Application filed 23 December 2013;

   (b)Affidavit of Ms Penna filed 23 December 2013;

   (c)Affidavit – Non-Filing of Family Dispute Resolution Certificate;

   (d)Affidavit of Mr R filed 3 February 2014;

   (e)Affidavit of Ms Penna filed 6 February 2014; and

   (f)Affidavit of Ms S filed 6 February 2014.

2. That the father is deemed to have been served with the above documents three (3) days after service in accordance with Order 1 hereof has been effected.

3. That the mother be at liberty to take all steps necessary to arrange for notice to be posted on the father’s Facebook of these current proceedings and the next Court date.

4. That this matter be adjourned for Mention at 9.30am on 18 March 2014 in the Federal Circuit Court of Australia at Brisbane.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRC 273 of 2011

MS PENNA

Applicant

And

MR LANZA

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. These are parenting proceedings pursuant to Part VII of the Family Law Act1975 as amended (“the Act”). I have before me an Application in a Case filed by the Applicant mother on 6 February 2013 seeking orders pursuant to Division 6.4 of the Federal Circuit Court Rules2001 (“the Rules”) for substituted service and the dispensing of personal service on the Respondent.

2. By Initiating Application filed on 23 December 2013 the Applicant mother sought parenting orders on a final and interim basis with respect to X born on (omitted) 2006, a child of her relationship with the Respondent.

3. The mother is seeking orders on a final basis that X live with her. On an interim basis she seeks a recovery order pursuant to section 67Q of the Act and that the child be returned to and live with her.

Material relied upon

1. I have considered the following material:

   a)Initiating Application filed by the mother on 23 December 2013;

   b)Affidavit of the mother filed in support on the same date;

   c)Affidavit of Non-Filing of Family Dispute Resolution Certificate of the same date;

   d)Affidavit of the process server Mr R filed on 3 February 2014;

   e)Further Affidavit of the mother filed 6 February 2014; and

   f)Affidavit of the mother’s cousin, Ms S, together with the Application in a Case of the mother filed on 6 February 2014.

Legal principles

1. Rule 6.14 of the Rules makes clear that if for any reason it is impractical to serve a document under the relevant part of the Rules, the Court may make an order dispensing with any service or substituting another way of serving the document on that person and further that the Court may specify the steps to be taken for bringing the document to the attention of the person to be served.

2. The court may also specify that the document is to be taken to have been served on the happening of the specified event or at the end of a specified time.

3. Rule 6.15 then goes on to set out the matters to be taken into account by the Court when making an order for dispensing with service or substituted service.

Discussion

1. In her Application in a Case the mother is seeking that personal service on the father be dispensed with, and in lieu thereof, orders be made for substituted service upon him at his mother’s address in (omitted) and also at an address at (omitted).

2. It is the mother’s case that the father is avoiding service.  She relies in this regard on the Affidavit of Mr R.

3. Further on her evidence if the Respondent had vacated the property at (omitted), one of the addresses where she has sought to serve him, he has now returned to that address and she relies upon her Affidavit of her cousin Ms S in that regard.

4. She also adduces evidence that the Respondent maintains contact with his mother, having on her evidence recently resided with her for a short period of time at her (omitted) address.

5. Having considered the evidence and taking into account the matters that I am required to consider under Rule 6.15, I am satisfied that the mother has taken reasonable steps to attempt to serve her Application on the Respondent father.

6. I am further satisfied that it is likely that making the orders sought by her as set out in her Application in a Case will likely bring her Application to the attention of the Respondent father.

7. In addition to the orders for the effecting of service, the Applicant also seeks that the next Court event be posted on Respondent’s Facebook.  In that regard the Applicant’s evidence is that the evidence of her cousin is that she is able to access the father’s Facebook and he continues to access his Facebook page on a regular basis. 

8. I am satisfied that the various orders sought by the mother would likely bring to the attention of the father these proceedings.

9. I am further satisfied that in the circumstances of this case it is not reasonable for the mother to be put to additional costs associated with the further engagement of a process server.  She has already done that. He has already been to the address on two occasions.

10. I am satisfied that placing notice on the father’s Facebook of the next Court event would be an appropriate manner to advertise that event being a means of communication readily available and able to bring to the attention of the father these proceedings.

11. I order that the father be taken to have been served three days after service upon him as ordered.

12. I order that the mother be at liberty to take all steps necessary to arrange for a notice to be posted on the father’s Facebook providing him with details of the next Court event.

13. I shall publish my reasons in this matter.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Purdon-Sully.

Date:     19 February 2014