FNN v IIG [2014] FJMC 195; Case No 12-SUV-0254 (20 May 2014)

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

CASE NO. 12/SUV/0254

BETWEEN:

FNN

Applicants

AND:

IIG

Respondent

___________________________________________________________________________
APPEARANCES/REPRESENTATIONS

Ms. Maharaj A. 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 service of the application for dissolution of marriage (F1) be dispensed with; pursuant to Rule 4.16 of the Family Law Rules 2005.”
   
2. The Applicant wife filed a Form 12 and 23 dated 04-04-2014 (Form 23). The said Form 23 reads inter alia in the 3^rd paragraph that at the time of the marriage, the Respondent was living in Sydney, Australia but she does not know his current whereabouts as they never maintained any form of communication after their separation. She further submits that she also tried to serve the document through a Sheriff in Australia, at the Respondent’s last known address, but Sheriff could not locate the Respondent.
   
3. Further Applicant/ wife submits in Para. 5, that as she is not aware of the Respondent’s address, she is not in a position for personal service. She also submits that she is not in a position to afford the amount for advertising.
   
4. Further she also submits that in the 11^th paragraph of F23 that the respondent had file an application for nullity in the High Court, which had been stuck out due to non appearance and furthermore submits that the respondent would not stand to be prejudiced if the application for dissolution of marriage is granted as filed by the wife.
   

Issue

5. Whether the wife qualify for “an order that service of the application for dissolution of marriage (F1) be dispensed with pursuant to Rule 4 .16 of the Family Law Rules 2005?
   
6. The Law
   
   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 applon ma>ex i>ex parte in accordance with Form 12, the court may dispense with service of a document.

(2) &Isidern application, ton, the court may have regard to—

(a) wh/i>whetherether the applicant has taken reasonable sto serve the document on the respondent;

(b) whether the applicant has taken aken 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) If an order relating to service of a document under sub rule (1)—

(a) is unconditional; or

(b) is made subject to a condition that is complied wihe dot is taken to have been served.

Brie>Brief Anaf Analysis

7. 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. 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.
   
8. In this backdrop, firstly I note that the Applicant/Lady applied for substitute service by Form 12 and 23 dated 05^th December 2013 and I note in the application she stated her address as 000, Hume Highway Greencare,2196, Australia. Secondly, I note that the Applicant stated 00, Beauchamp Rd, Matraville, 2036, Australia as the husband’s address in the Form 1 filed on 27 June 2013.
   
9. Thirdly, with referring to wife’s F23 para.11, I also note that there is a Form 2 in the file dated 3 May 2012 filed by the husband, which states that his residential address is 000, Beauchamp Rd in Matraville 2036, New South Wales, Sydney, Australia. Thus, it is clear, the Applicant/Lady noted a different address comparing to the Form 2 filed by the husband.
   
10. Fourthly, Applicant/Lady stated that the Sheriff failed to serve the documents but, there is nothing before me to support her evidence.
    
11. 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 applicant and the nature of the proceedings.
    
12. Finally, in order to address R. 4.16 (e), the Applicant did not enclose any evidence as to her means. Further, I note that by the time the Form 12 and 23 dated 04-04-2014 she still maintains her address as 000, Hume Highway, Greencare 2196, Australia and under Part A notes that she is a sales representative. I also note that the wife is represented by a counsellor and she is not appearing before the court. Thus it is deems that considering the details given in the latest application dated 04-04-14 the wife currently or until 4^th April 2014, resides in Australia and working as a sales representative.
    

Conclusion

13. In light of the above discussed paragraphs, on one hand, I am of the view that the wife has not taken reasonable steps to serve the document on the respondent given the defects in the address stated in the F1 comparing to address in the F2 as explained in above paragraphs. And also she fails to submit an affidavit from the Sheriff to show the attempt that the Sheriff had made, therefore the Applicant is not qualify under R. 4.16 (2). On the other hand given the fact that the wife works as a sales representative in Australia and as there is no any evidence as to the wife’s means. I am of the view that the wife is also does not qualifying under R 4.6 (d) and (e) as well to dispense with the service of documents as she deems to has means to cater for the substitute service.
    
14. Therefore, I refuse to grant an order as sought by the wife to dispensed with service of the application for dissolution of marriage (F1) pursuant to Rule 4 .16 of the Family Law Rules 2005.
    

30 days to appeal

LAKSHIKA FERNANDO

RESIDENT MAGISTRATE

On this 20^th day of May 2014.