State Central Authority and Shultz

[2012] FamCA 1106

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & SHULTZ [2012] FamCA 1106

FAMILY LAW – Matter adjourned – final orders were made at a time when no attempt was made to arrange service to the father notwithstanding an address was clearly shown in the mother’s affidavit

Family Law Act 1975 (Cth)

APPLICANT: State Central Authority, Secretary to the Department of Human Services

RESPONDENT: Ms Shultz

FILE NUMBER: MLC 11918 of 2012

DATE DELIVERED: 18 December 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 18 December 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Wilson

SOLICITOR FOR THE APPLICANT: Department of Human Services

THE RESPONDENT: No appearance

Orders

1. That the application filed 17 December 2012 is adjourned to 9.00am on 24 December 2012.

2. That the mother attend personally on the return date.

3. That a new file be forthwith prepared and the State Central Authority documents be placed therein.

4. The State Central Authority have access to and the capacity to copy the documents filed in proceedings MLC7575 of 2012 as between the mother and the father.

5. That the mother be forthwith served with:

   (a)a copy of these orders; and

   (b)the application filed 17 December 2012.

6. That service referred to in paragraph 5 be by:

   (a)    personal delivery to the mother; and

   (b)    post and emailed to the mother’s solicitors Vivien Mavropoulos & Associates as shown in the initiating application filed in proceedings MLC7575 of 2012.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11918 of 2012

State Central Authority, Secretary to the Department of Human Services

Applicant

And

Ms Shultz

Respondent

REASONS FOR JUDGMENT

1. This is an application is filed by the State Central Authority in relation to the Child Abduction Convention Regulations.  By chance when it was filed over the counter, the staff picked up that the parents already have an extant application filed before the court and hence what should have been two files became one.  That meant that the State Central Authority was somehow mixed in with the dispute between the mother and the father.  That is inappropriate because the State Central Authority is an applicant in its own right.

2. What is troubling is, apparent from reading the documents on the Federal Magistrates Court file which to my understanding the State Central Authority have not seen, an application was filed on 20 August 2012 by the mother through a firm of solicitors.  That application was filed in the Federal Magistrates Court.  It was supported by an affidavit sworn 9 June 2012.  When the matter came on for hearing in the Federal Magistrates Court on 25 September 2012 for reasons which are unexplained, the learned federal magistrate proceeded to deal with the matter on a final basis notwithstanding the documents had not been served on the father.

3. The affidavit of the mother certainly does not indicate why an order should be made for the exemption from service and on any view the material for making a final order generally was extremely light on.  There is no explanation either in the affidavit or certainly in any reasons of the learned federal magistrate as to why, if an affidavit was sworn on 9 June, no attempts were made to serve the father at the address of his parents.  That address is referred to in the affidavit.  No attempt was made before the filing of the material on 20 August and even more disconcerting, no such indication was given to the court about attempts of service between 20 August and when the matter came on 25 September.

4. It would transpire thereafter that the solicitor for the mother based upon the order of the federal magistrate, served the father by post with a copy of the final orders at that address of his parents.  I think an explanation needs to be given to this court as to why the case was dealt with the way it was.  Upon reading the material filed by the State Central Authority, no doubt on the details provided by the father, there is a totally different picture portrayed.  I am putting these reasons on the court file only because I am concerned that final orders were made at a time when no attempt was made to arrange service notwithstanding an address was clearly shown in the mother’s affidavit.

5. On that basis I propose to adjourn the matter to next Monday and direct that the mother attend and that service be arranged through her solicitors on the record. 

6. Having regard to chapter 24 of the Family Law Rules 2004 I consider the State Central Authority is a person within the meaning of those rules who has an interest in the court file and should be given access to the material notwithstanding the mother has not been consulted.  In my view this is a very serious matter and it requires some investigation.  Accordingly I will make orders as I have outlined.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 18 December 2012.

Associate:

Date:  7 January 2013