Sasani & King (No 2)

[2014] FamCA 254

FAMILY COURT OF AUSTRALIA

SASANI & KING (NO. 2) [2014] FamCA 254

FAMILY LAW – NULLITY – Where the respondent has not been served with the application in accordance with previous orders – Where the application is struck out with a right to reinstate once service is effected.

Family Law Act 1975 (Cth)

APPLICANT: Ms Sasani

RESPONDENT: Mr King

FILE NUMBER: MLC 6028 of 2013

DATE DELIVERED: 16 April 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 2 April 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Boden

SOLICITOR FOR THE APPLICANT: Starnet Legal Pty Ltd

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT: N/A

IT IS NOTED that publication of this judgment under the pseudonym Sasani & King (No. 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6028 of 2013

Ms Sasani

Applicant

And

Mr King

Respondent

REASONS

1. On 23 July 2013 the applicant filed an initiating application seeking a decree of nullity of the marriage which, according to the Certificate of Marriage annexed to her affidavit filed in support of that application, took place in Suburb P on … March 1997.

2. On 5 February 2014 the applicant filed a further affidavit in support of that application. Neither the application nor those two supporting affidavits sworn by the applicant have been served upon the respondent, Mr King.

3. The applicant has also filed and seeks to rely upon the affidavits of Kate Chong, Mr R and Mr W, all of which were filed on 14 November 2013 and wherein they each deposed to their various unsuccessful attempts to locate the whereabouts of the respondent and to serve the application and supporting affidavits upon him.

4. This matter was listed for hearing on 2 April 2014. This is the fourth occasion that the matter has been listed in the judicial duty list. In his reasons delivered on 5 February 2014 Cronin J observed that the application raises a number of significant issues not the least of which is that the respondent may have committed the offence of bigamy for which, if prosecuted, he might face a significant term of imprisonment.

5. The applicant deposed that her sister had provided her with contact details for the respondent’s cousin but that when she attempted to contact him and obtain the respondent’s telephone number the cousin had told her it was “bullshit” and that the respondent was now happily married and that she should not attempt to contact him. It was on the basis of this evidence that Cronin J made orders for substituted service of the documents upon the respondent by delivery of all of the affidavits filed by the applicant together with a copy of his Honour’s reasons and orders made 5 February 2014 to the respondent care of his cousin. Cronin J also granted leave to the applicant to issue a subpoena addressed to the respondent’s cousin.

6. The applicant relies upon a further affidavit sworn by her solicitor Ms Chong on 2 April 2014 in which she deposes to having attempted to contact the respondent’s cousin by telephone on numerous occasions without success and leaving voicemail messages for him introducing herself and requesting that he return her call. There is, however, no evidence of either the applicant or anyone on her behalf having made any other enquiries in order to locate the address of the respondent’s cousin in order to comply with Cronin J’s order for service of the required documents.

7. I agree with Cronin J that every effort should be made to serve the application and supporting affidavits upon the respondent together with his Honour’s orders and reasons for judgment and that ‘as the cousin seems to be the person who knows exactly what is happening, it is appropriate that he be the service recipient of the document on behalf of the respondent.’

8. It was in circumstances where the matter has now been listed before the Court on four occasions, where the applicant has not complied with the orders made by Cronin J, and absent any evidence in relation to steps she may have taken in order to comply with that order, that I determined the matter should be struck out with a right of reinstatement once service has been effected in accordance with that order.

I certify that preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 16 April 2014.

Associate: 

Date:  16 April 2014