SAMWORTH & BURNETT
[2011] FMCAfam 566
•6 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SAMWORTH & BURNETT | [2011] FMCAfam 566 |
| FAMILY LAW – Children – parenting orders. PRACTICE & PROCEDURE – Service of application – service by hand – where applicant served respondent personally – service not proved. |
| Federal Magistrates Court Rules 2001, rr.6.06, 6.07, 6.14, 6.15 |
| Applicant: | MS SAMWORTH |
| Respondent: | MR BURNETT |
| File Number: | SYC 552 of 2011 |
| Judgment of: | Scarlett FM |
| Hearing date: | 6 June 2011 |
| Date of Last Submission: | 6 June 2011 |
| Delivered at: | Sydney |
| Delivered on: | 6 June 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Nagle |
| Solicitors for the Applicant: | O'Connell Solicitors |
| Counsel for the Respondent: | No appearance |
| Solicitors for the Respondent: | No solicitor |
ORDERS
The Applicant has not proved service of the Application and supporting affidavits on the Respondent.
The Application will be re-listed to Monday 1 August 2011 for mention at 10:00am.
The Applicant is granted leave to amend the return date on the service copies.
The Applicant is granted leave to file an Application for Substituted Service and an affidavit in support of that application prior to 1 August 2011.
IT IS NOTED that publication of this judgment under the pseudonym Samworth & Burnett is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 552 of 2011
| MS SAMWORTH |
Applicant
And
| MR BURNETT |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for parenting orders. The Applicant is the mother of a daughter called [X], who was born [in] 2000, and she seeks orders that the child should live with her and the Father should only spend time with her on a supervised basis after he has had a psychiatric examination.
There have been considerable difficulties in serving the application on the Respondent. The application was returnable on 2nd May 2011 but on that occasion the Respondent did not appear as the Applicant was unable to prove service.
The Applicant’s solicitor sought to file and serve an amended application. That leave was granted and the matter was re-listed today.
The Applicant has attended Court today but the Respondent has not. The Applicant’s solicitor that her client believed that the Respondent was in Perth.
There are now two affidavits of service on file.
The affidavit of service filed on 17th May 2011 sets out that the Application for Parenting Orders and an affidavit of the Applicant were personally served on the Respondent on 12th April 2011.
Unfortunately, the documents were served by the Applicant.
The Affidavit of Service filed today sets out that the Amended Application and a further affidavit by the Applicant were personally served on the Respondent on 17th May 2011.
Those documents were also served by the Applicant.
The Applicant seeks to rely on those affidavits to prove service.
The Rules
The Federal Magistrates Court Rules 2001 set out the way that documents are to be served.
Rule 6.06 provides at subrule (1):
Service by hand is required for an application starting a proceeding or a subpoena requiring attendance of a person.
Rule 6.07 provides at subrule (3):
In a family law or child support proceeding, the person serving a document must not be the party on whose behalf it is served.
Service not Proved
The Applicant has on two occasions served documents on the Respondent in a manner specifically forbidden by the Rules.
It needs hardly to be said that a party who serves a document in a way prohibited by the Rules cannot be permitted to rely on an affidavit recording that breach of the Rules in order to prove service.
Application to be Re-listed
The application will be re-listed to a further date so that a further attempt can be made to serve the Respondent in a way permitted by the Rules.
If personal service cannot be achieved, the Applicant may apply for an order dispensing with service or substituting another way of serving the document (see Rule 6.14). If the Applicant wishes to pursue that course, the Court will taken into account the matters specified by Rule 6.15.
Until the documents are served personally or the Court makes an order for substituted service, and that order is complied, the Court will not regard the application as having been served on the Respondent.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 7 June 2011
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