LMN v VP [2014] FJMC 194; Case No 14-SUV-0089 (9 July 2014)

IN THE FAMILY DIVISION OF THE MAGISTRATE’S COURT AT SUVA

CASE NO. 14/SUV/0089

BETWEEN:

LMN

Applicants

AND:

VP

Respondent

___________________________________________________________________________
APPEARANCES/REPRESENTATIONS

Ms. Gandhi D. ( Neel Shivam Lawyers) for the Applicant

________________________________________________________________________

DECISION OF THE COURT

Background facts

1. This is an ex- parte application where the Applicant has applied for “an order that the electronic acknowledgement of service by the respondent dated 4-03-14 is sufficient evidence of service on the respondent and alternatively an order for service of the application for dissolution of marriage (F1) be dispensed.”
   
2. The Applicant wife filed a Form 12 and Form 23 dated 04-06-2014. The said Form 23 reads inter alia in the 4^th paragraph that the Respondent was in Fiji to attend his sister’s wedding on 22^nd February 2014 whereby; she have a Bailiff serve Form1 on the Respondent at his parent’s residence at Lautoka.
   
3. Further she states that in 8^th and 9^th paragraph, “when the bailiff who is also a Police constable enquired Respondent’s family on Respondent’s whereabouts that they provided false information.”
4. Further the Applicant/wife states in 10^th paragraph that she arranged for a Courier service via TNT to have Form 01 application served on Respondent and in 11^th and 12^th paragraph she submits that the Respondent had acknowledge the same. Copy of the acknowledgment of service is produced and marked in evidence Exhibit “A” which is considered by this court.
   
5. In 13^th paragraph the Applicant submits that the Respondent had informed her year ago that he was intending to move from his given address in America, but she does not know his current whereabouts. She only communicated through e-mails and Viber social service.
   
6. Further Applicant/wife submits in paragraph 16, that as she has no one to support her financially therefore she submits that she is not able to afford the cost for advertising in American daily newspaper.
   
   7. Further she also submits that in the 17^th paragraph of Form 23 that prior to filing Form 01, she had requested respondent to consent to the divorce since they were separated for more than year, whereby the respondent had asked to pay him US$5000.00 so that he can give his consent. Furthermore in the 18^th paragraph submits that the respondent has been in America for more than 8 years now and therefore they have been separated for more than 02 years and also states that they do not have any children of the marriage.
      

Issue

8. Whether the wife qualify for “an order that the electronic acknowledgement of service by the respondent dated 4-03-14 is sufficient evidence of service on the respondent and alternatively an order for service of the application for dissolution of marriage (F1) be dispensed” pursuant to Rules of the Family Law Rules 2005?
   
9. The Law and analysis;
   
   1. The Family Law Rule 4.16 of the Family Law Rules 2005 states that; Court may dispense with service of documents;

4.16.— (1) On applicatade ex parte in accordance with Form 12, the court may dispense with service of a document.

(2) In coring pl applicatiocation, the court may have regard to—

(a) whether the applicant has taken reasonable steps to serve the document on the respondent;

(b) whether the applicant has taken reasonable steps to provide the respondent with a copy of the document;

(c) whether the respondent could become aware of the existence and nature of the document by means of advertising or another form of communication that is reasonably available to the applicant;

(d) the likely cost to the applicant of serving the document, the means of the applicant and the nature of the proceedings; and

(e) any other relevant matter.

(3) f an relating ting to serv service of a document under sub rule (1)—

(a) is unconditional; or

(b) is made subject to a condithat iplied with, the document is taken to have been seen served.rved.

10. According to Family Rule 4.16 (2) the Court has the discretion in respect to dispense with the service. Rule 4.16 2 (a)(b) provides the Court may have regards to whether the Applicant has taken reasonable steps to serve the document on the Respondent; Rule 4.16 (2) (c) provides that the court may gave regard to whether the respondent could become aware of the existence and nature of the document by means of advertising or another form of communication that is reasonably available to the applicant.
    
11. Thus the Court has to satisfy that the Applicant has taken reasonable steps to serve documents on the Respondent pursuant to R 4.16 (2) before exercising the discretion.
    
12. In this backdrop, firstly I note that the Applicant/Lady applied for the electronic acknowledgement of service by the respondent dated 4-03-14 is sufficient evidence of service on the respondent and alternatively an order for service of the application for dissolution of marriage (F1) be dispensed. I note in the application she stated respondent’s address as 000, 35^th Place South APT F 301, Kent, WA 98032. Secondly, I note that the Applicant stated that “on 22^nd February 2014 a Bailiff served Form1 on the Respondent at his parent’s residence at Lautoka.” Accordingly the address on the F1 and the address on the TNT receipt is different. There is no admissible evidence before me to say that the respondent was in a Lautoka address at the time of the service.
    
13. With reference to wife’s F23 paragraph 4th , 8^th and 9^th , I wish to highlight that the applicant failed to submit any supporting documents to confirm her service as stated above. I do not see any affidavit of service by a bailiff or an acknowledgement which was signed by the respondent.
    
    14. I also note that the F21 and dated 15^th March 2014 indicates that the applicant sent the documents by a Courier service to an address in Lautoka. But there is no any acknowledgement in part C of the said form 21 by the respondent.
        
    15. The applicant submitted a photo copy of a TNT slip and submitted that the respondent acknowledged the same with his signature. The court directed the applicant to submit the original copy of the TNT receipt and directed that the F. 21 to be submitted with the respondent’s signature.
        
    16. In this scenario, I wish to consider below mentioned Rules as well. Rule 4.04.—(1) If a document is filed in proceedings, the person who filed the document must serve a copy of it as soon as practicable—

(a) on each other party to the proceedings who has an address for service in the proceedings;

(b) on any child’s representative appointed under section 125 of the Act; and

(c) in the case of an application initiating a claim, or a cause of action, and any document filed with the application, on each other party to the application.

(2) Unless the couderorothe otherwise, a person must not serve a document on another person more than 12 months after the date on which the document was filed.

1. R. 4.06. sealpy of an apan applicatlication for dissolution of marriage or other principal relief must be served on the respondent by—

(a) handing it to the respondent; or

(> sending it by p by pre-pare-paid post in a sealed envelope addressed to the respondent at the respondent’s last known address.

18. Additional requirements for service by post. R 4.10.—(1) A person sera document by p by post must include with the document—

(a) a form of acknowledgment of service in accordance with Form 21; and

(b) an envelope that&#8/p> <) is addressed toed to the the person on whose behalf the document is being served at the address for service of that person; and

(ii) if the document is to be sent to an address in the Fiji Islands, bears the correct postage for the return by post of the acknowledgment of service in the envelope.

(2) If the document is s beed rved by post outside the Fiji Islands, the document must be posted by air mail.

20. R 4.14.—(1) Unless the court otherwise orders, any evidence of service to be given (except an acknowledgment of service) must be given by affidavit.

(2) An affidavitervice musi be in accordance with Form 22.

21. (1) Anowlet of seof service vice of a document thnt that isat is signed by the person on whom the document was served is evidence that the document was served in accordance with the acknowledgment.

(2) If the r of umencument can can identify the person served, service of the document may be proved by evidence to that effect given by trver./p>

(3) If the s of a document ment can identify a photograpograph of h of the person served, and another person who knows the person served identifies the photograph as a photograph of the person served, service of the document may be proved by evidence to that effect by the server and the other person.

(4) If a peother then the serveserver of a document—

(a) was present when the document was served and–

(ii) saw the documended e person served, or put down and left in the pres presence ence of the person served; and

(iii) can identify the person served,

service of the document may be proved by evidence to that effect given by the other person.

(5) Nothing in rule precludecludes the giving of any other evidence to prove the service of a document.

22. As the above referred rules are clear about the proof of service and as to how and when are the documents to be served , discretion of the court and what are the consequences of failing to comply with the conditions.
    
23. Therefore, I refer back to the R. 4.16. The applicant failed to submit any supporting documents to confirm her service as stated above.
    
24. In order to address R. 4.16 (e), the Applicant did not also enclose any evidence as to her means.
    

Now, I refer to failure to comply with Rules or court orders R.5.02. &#160ides Subject to any diny dispensation under rule 5.01, if a party does not do all things required by the Rules, or by an order of the court, the court may—

(a) dismis application or response;

(b) stay the proceedings, or part of the proceedings; or

(c) make any other order the court thinks fit.

And R. 5.03. &#1ovides a Court tort to give directions in cases of doubt or difficulty

Where the court is satisfied in the circumstances of a particular case that—

a) the provisions of thof the Act, the Regulations or these Rules do not make adequate provision for a matter of practice or procedure; or

(b) a difficulty arises or doubt exists as to a matter of practice or procedure,

it may give such directions with respect to the practice and procedure to be followed in the case as it considers necessary.

25. I also note 4.16 (e) as well. Again the Court has discretion to dispense with the service considering the likely cost to the Applicant of serving of document, the means of the and the nature of the proceedings.
    

Conclusion

26. The court has to satisfy that the Applicant has taken reasonable steps to serve documents on the Respondent pursuant to R 4.16 (2) before exercising the discretion.
    

NOW THEREFORE BE IT ORDERED BY THE COURT THAT:

1. In light of the above discussed paragraphs, on one hand, I am of the view that the applicant has not taken reasonable steps to serve the document on the respondent as discussed above 11- 17 paragraphs.
   
2. And also she fails to submit an affidavit from the Bailiff to show the attempt that the Bailiff had made, therefore the Applicant is not qualify under R. 4.16 and also with the absence of the original TNT receipt and the unavailability of the respondent’s signature on the F.21 the applicant not also qualify that the court to consider the electronic acknowledgement of service by the respondent dated 4-03-14 is sufficient evidence of service on the respondent
   
3. I am also of the view that the wife is not qualifying under R 4.6 (d) and (e) as well to dispense with the service of documents as there is no evidence as to her means to show that she is unable to cater for substitute service.
   
4. Therefore, I refuse to grant an order as sought by the applicant to dispense with service and an order that the electronic acknowledgement of service by the respondent dated 4-03-14 is sufficient evidence of service on the respondent of the application for dissolution of marriage (F1).
   

30 days to appeal

LAKSHIKA FERNANDO

RESIDENT MAGISTRATE

On this 09^th day of July 2014.