Davenport and Rattray and Anor

[2012] FMCAfam 1097

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DAVENPORT & RATTRAY & ANOR [2012] FMCAfam 1097

FAMILY LAW – Practice and Procedure – service of initiating application in foreign jurisdictions; service of documents in accordance The Hague Convention on the service abroad of judicial and extrajudicial documents in civil or commercial matters. 

Family Law Rules 1984
Family Law Rules 2004
Federal Magistrates Court Rules 2001
Federal Court Amendment Rules 2009No. 1
Federal Court Rules 2011
Family Law Regulations 1984
Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters

Agar v Hyde [2000] HCA 41; 201 CLR 552; 173 ALR 665; 74 ALJR 1219
Siskina (Cargo Owners) v. Distos S.A (1979) AC 210
Amin Rasheed Corpn v Kuwait Insurance [1984] AC 50
Contender 1 Ltd v Lep International Pty Ltd [1988] HCA 60; (1988) 82 ALR 394; (1988) 63 ALJR 26
Sirdar Gurdyal Singh v. Rajah of Faridkote (1894) AC 670
Laurie v. Carroll [1958] HCA 4; (1958) 98 CLR 310
Gosper v. Sawyer [1985] HCA 19; (1985) 160 CLR 548
Flaherty v. Girgis HCA 17; (1987) 162 CLR 574
Vitkovice Horni a Hutni Tezirstvo v. Korner (1951) AC 869

Applicant: MS DAVENPORT

First Respondent: MR RATTRAY

Second Respondent: MR DAVENPORT

File Number: NCC 1150 of 2012

Judgment of: Myers FM

Hearing date: 26 June 2012

Date of Last Submission: 26 June 2012

Delivered at: Newcastle

Delivered on: 26 June 2012

REPRESENTATION

Solicitors for the Applicant: Self Represented

Solicitors for the First  Respondent: Self Represented

Solicitors for the Second  Respondent: Self Represented

ORDERS

1. In accordance with the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters the Registrar of this court forward a request to the (omitted) Zurich to serve on Mr Rattray the following documents:

   a.Initiating Application filed 4 May 2012;

   b.Amended Initiating Application filed 12 June 2012;

   c.Application in a Case filed 16 May 2012;

   d.Affidavits of the applicant affirmed on 2 May 2012, 15 May 2012, 8 June 2012, wrongly dated 8 June 2016;

   e.Affidavits of the second respondent affirmed on 2 May 2012, 15 May 2012 and 12 June 2012;

   f.Copy of today’s orders dated 26 June 2012.

2. The matter is adjourned to 31 August 2012 at 9.30 am for a directions hearing

3. Leave is granted to the second respondent dispensing with his requirement to attend in person on the next occasion in circumstances where the applicant appears personally or is represented before the court.

THE COURT NOTES THAT:

1. The current address of the first respondent is Mr Rattray, (omitted), Switzerland

2. The first respondent has indicated via an email to the applicant that he is happy to read the documents being transmitted to him by email but that he requires service of the documents through the appropriate official authorities.

IT IS NOTED that publication of this judgment under the pseudonym Davenport & Rattray & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT NEWCASTLE

NCC 1150 of 2012

MS DAVENPORT

Applicant

And

MR RATTRAY

First Respondent

MR DAVENPORT

Second Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. This is a parenting matter that was commenced by way of initiating application filed in the court on 4 May 2012.  The applicant in the proceedings is Ms Davenport, the mother of a child, X, who was born on (omitted) 1997.

2. The father of X is the first respondent named in the proceedings, Mr Rattray.  The mother sought that the child, X, now be known as X. 

3. The second respondent in the proceedings is Mr Davenport, who is before the court.  Mr Davenport and the mother married in (omitted) 2009.  A child was born between the mother and the second respondent, namely Y on (omitted) 2010 and there is evidence before the court, contained within the affidavit of the second respondent, that the mother is, indeed, pregnant with the mother and second respondent’s second child and is due to deliver that child in, on or about August of 2012.

4. The mother seeks orders that she be entitled to apply to the Registrar of Births, Deaths and Marriages to change the name of X without the consent of the father and the Registrar is requested to give effect to any such application.  The mother seeks, on an interim basis, orders that, in accordance with the provisions of Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, that the Registrar of this court forward a request to the (omitted) Switzerland to serve on Mr Rattray this application, the affidavit of Ms Davenport, affirmed 2 May 2012, the affidavit of Mr Davenport, affirmed 2 May 2012 and the affidavit of X, affirmed 2 May 2012.

5. While I note that the child’s affidavit has not been filed in these proceedings, it should be made clear that the court would not have accepted the affidavit.  In any case the court notes that although the mother referred to the child’s affidavit in the orders sought, the mother did not seek to file that affidavit.

6. The mother then caused to be filed in the court an amended initiating application seeking further orders with respect to the child, namely that X be known as X, that the mother is hereby authorised to enquire to the Registrar of Births, Deaths and Marriages in New South Wales to change the name of the child without the consent of the first respondent and the Registrar is requested to give effect to any such application. 

7. Further orders were sought in the amended initiating application namely: 

   a)that the mother is permitted to do all things necessary to permit  X to travel outside of the Commonwealth of Australia without the consent of the first respondent; 

   b)that the mother is permitted to apply for the issue of an Australian passport for X without the consent of the father. 

8. The court notes that within the amended initiating application, the mother sought interim orders identical to those in the initiating application with respect to service in accordance with the provisions of the Hague Convention.

9. The mother caused to be filed on 16 May 2012 an application in a case seeking that the final orders sort be dealt with ex parte, that the requirement for service be dispensed with or alternatively for substituted service on the father by registered post to his place of work in (omitted) Switzerland or for service via email.

10. In support of the orders sought by the mother she caused to be filed in the court on 12 June 2012 an affidavit affirmed by her dated 8 June 2016.  Despite the incorrect date I take the date of affirmation to be 8 June 2012. 

11. The mother deposes that she caused to be filed an initiating application on 4 May 2012; that both she and the child, X, became Australian citizens on (omitted) 2012 and as X is now an Australian citizen, X requires an Australian passport to travel outside of Australia; that X has family and friends residing in Switzerland; and that the father’s parents being the paternal grandparents, the father’s various siblings and X’s cousins and Godparents reside in Switzerland.

12. The mother deposes that X shares a close bond with her family in Switzerland and also to her family in Australia and that X has indicated to the mother that she misses her family in Switzerland very much. 

13. It is the mother’s evidence contained within her affidavit that X is currently in year 9 at school in Australia and that X has expressed a wish with regards to her education, that she complete year 10 in Australia, obtain her school certificate with a view to then completing years 11 and 12 in Switzerland.  It is the mother’s evidence that X has further indicated that after completing years 11 and 12 in Switzerland, she would like to return to Australia to undertake university studies.

14. It is the mother’s evidence that she approached the father, enquiring whether he would be prepared to sign an application for an Australian passport. It is apparent having read the affidavit material that there has then been an exchange of correspondence between the parties by email, and that the father has refused to execute an application for a passport. The mother submits the father stated to the mother words to the effect that he thought that if he did so, “it would have consequences”.  

15. It is the mother’s application that she be entitled to change the child’s name in circumstances where the child X has been using the surname “Rattray-Davenport”, and seeks an Australian passport so that the child can travel and, indeed, travel to Switzerland, envisaging that such travel should take place in December of this year.

16. Mr Davenport, the second respondent in these proceedings who is now married to the mother has affirmed an affidavit on 2 May 2012 filed 4 May 2012.  The second respondent deposes that X has told him she decided to change her surname to Rattray-Davenport in circumstances where her mother is married to the second respondent and now uses the surname Rattray-Davenport and that X’s half sister, Y, uses the surname Mr Davenport. 

17. The second respondent deposes that X uses the surname Mr Davenport and has written this on her school books and it is written on her permission slips at school and, on occasion, when she’s issued school reports, it uses her surname Rattray. 

18. The second respondent further deposes that X has told him that when such issues take place, she feels awkward, especially at school as she has a different surname to that of her mother and to her half sister.

19. On 12 June 2012, the second respondent caused to be filed in the proceedings a further affidavit affirmed by him on 12 June 2012.  That affidavit goes to issues relating to the issue of requesting an Australian passport so that the parties can travel outside of the Commonwealth of Australia. 

20. The proper service of a court’s originating process, being that of a summons, writ, statement of claim or in this instance, an initiating application before this court, is what avails a court of jurisdiction over a defendant or respondent and gives a defendant or respondent notice of the proceedings against them. 

21. Prior to Australia entering into the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, where a party to court proceedings sought to serve a document on a respondent in a foreign jurisdiction, that party was required to do so in a manner that complied with the rules of the Australian court and in some cases the rules of the country in which service was to occur.  Such circumstances were costly and in some cases involved the party attempting service by engaging an agent in the foreign jurisdiction.

22. Where a respondent ignored the document served, the applicant could seek that the Australian court proceed in the respondent’s absence.

23. Where the court entered a judgment against a respondent, the respondent could later seek to challenge the judgment on a number of grounds including that there had been improper service. 

24. In Amin Rasheed Corpn v Kuwait Insurance [1984] AC 50, Lord Diplock considered that jurisdiction exercised by an English court over a foreign corporation that had no place of business in England, where leave was granted under the relevant rule of the court to serve an initiating process out of the jurisdiction and held:

    "...is an exorbitant jurisdiction, ie, it is one which, under general English conflict rules, an English court would not recognise as possessed by any foreign court in the absence of some treaty providing for such recognition. Comity thus dictates that the judicial discretion to grant leave under this paragraph [of the rules] should be exercised with circumspection in cases where there exists an alternative forum, viz the courts of the foreign country where the proposed defendant does carry on business, and whose jurisdiction would be recognised under English conflict rules."

25. In Contender 1 Ltd v Lep International Pty Ltd [1988] HCA 60; (1988) 82 ALR 394; (1988) 63 ALJR 26 the High Court comprising

    
    

    Wilson, Brennan, Dawson, Toohey and Gaudron JJ considered an appeal relating to the issue of service in a foreign jurisdiction and held:

    “The jurisdictions asserted over foreigners under some of the provisions of r.1 are "'exorbitant' jurisdictions which run counter to the normal rules of comity among civilised nations ... (and) the sub-rules are to be strictly construed in favour of the foreigner": per Lord Diplock in Siskina (Cargo Owners) v. Distos S.A (1979) AC 210, at pp 254-255. The jurisdiction asserted in this case is clearly "exorbitant" in that sense, for a foreigner resident abroad who is served in a foreign place with process commencing an action in personam is, in the absence of an overriding local statute, immune from the jurisdiction of a local court: Sirdar Gurdyal Singh v. Rajah of Faridkote (1894) AC 670, at p 684; Laurie v. Carroll [1958] HCA 4; (1958) 98 CLR 310, at pp 322,323; Gosper v. Sawyer [1985] HCA 19; (1985) 160 CLR 548, at pp 564,565; Flaherty v. Girgis HCA 17; (1987) 162 CLR 574, at pp 599,600. The order made by Clarke J. concluded against the appellant the question of its immunity from the jurisdiction of the Supreme Court of New South Wales. The Court of Appeal had to decide whether to grant leave to appeal against that order. That Court did not think the matter was suitable for the grant of leave because "it believes it will be in a better position to deal with any relevant legal principles when the facts have been fully heard at the trial". In my respectful opinion, their Honours misconceived the nature of the order which they had been asked to review and in consequence the exercise of their discretion to grant leave to appeal miscarried. The question whether the appellant was amenable to the exercise of the Court's jurisdiction could not be left until the jurisdiction had been exercised. The Court was required to determine at the outset whether the case falls within Pt 10 r.1: if the case does not fall within that rule there is no jurisdiction to conduct a trial. In Vitkovice Horni a Hutni Tezirstvo v. Korner (1951) AC 869, Lord Radcliffe (at p 883) propounded the test for determining whether statutory conditions for service out of the jurisdiction are satisfied: on consideration of all admissible material, is there a strong argument for the opinion that the qualifying conditions are satisfied? The parties in this case agree that that is the appropriate test. It is, of course, a test appropriate to the resolution of the question of jurisdiction at the very beginning of the case, not after the trial.

26. In Agar v Hyde 201 CLR 552 the High Court comprising Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ considered an appeal dealing in part with the question of difficulties associated with service in a foreign jurisdiction and undertook an exhaustive review of various State Acts dealing with service to ascertain whether service in a foreign jurisdiction was correctly effected in accordance with the statutory requirements.

27. The cases I have referred to demonstrate the difficulties associated with service in foreign jurisdictions and have in the view of the court, in part, contributed to litigation providing a less than reliable means of resolving cross jurisdictional disputes.  In the paper by Spiegelman J, ‘The Hague Choice of Court Convention and International Commercial Litigation’ presented at the Commonwealth Law Conference - 2009, in Hong Kong, on 7 April 2009, Spiegelman J noted:

    The global patchwork quilt of the laws and practices for recognition, enforcement and foreign judgment is by reason of its limited scope a significant barrier to worldwide trade and investment. 

28. The Federal Court Amendment Rules 2009, number 1, 2009, amended the Federal Court rules by inserting new Order 8A Rule 4, with respect to application for request for service abroad. The amendments were to take effect on the day the Hague Convention entered into force for Australia, which the Court notes took place on 1 July 2010. The Federal Court Rules were subsequently amended and the provisions of the old Order 8A Rule 4 are now contained at Division 10.06 of the Federal Court Rules 2011.

29. Division 10.06 of the Federal Court Rules 2011 relates to Service under the said Hague Convention.

30. Rule 10.64 of the Federal Court Rules 2011 provides for a process by which a Registrar of the Court may forward documents for service to a Convention country addressed to what is termed in the convention as a “Central Authority”.  The Federal Court Rules 2011 specify particular forms that must be completed and forwarded to the Central Authority together with the documents that are to be served.

31. Regulation 1.05 of the Federal Magistrates Court Rules 2001 provides that it is intended for the practice and procedure of the Federal Magistrates Court to be governed principally by the Federal Magistrates Court Rules 2001, however if, in a particular case, the rules are insufficient or inappropriate, the court may apply the Federal Court Rules or the Family Law Rules 2004, or the Family Law Rules 1984 in whole or in part, and modified or dispensed with as necessary.   

32. Part IIAB of the Family Law Regulations1984 sets out the procedure to be adopted by the Family Court of Australia, and Federal Magistrates Court of Australia exercising jurisdiction under the Family Law Act1975, both in respect of service in countries that are members to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters and countries that are not. Contained within schedule 1 of the Family Law Regulations is a draft form for use when requesting service abroad in accordance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. 

33. Noting the provisions Regulation 1.05 of the Federal Magistrates Court Rules 2001 this court is able to adopt the Federal Court Rules 2011, particularly those rules at Division 10.06. However as this a matter commenced pursuant to the Family Law Act1975 the court is bound to use those provisions relating to service as found in the  Family Law Regulations 1984. If the proceedings before the Federal Magistrates Court were not proceedings commenced under the Family Law Act then the court would be able to adopt the Federal Court Rules2011 with respect to service pursuant to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters  .

34. The Family Law Regulations 1984 relating to service utilising the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters apply in Family Law Act cases where court documents need to be served in a foreign jurisdiction that is a party to the Convention.  The Convention sets out standard procedures for the service of documents through a central authority established by the destination state.  For service through what is termed in the Convention as a “main channel of transmission” a request complying with the model form to the Convention from an authority of a judicial officer in Australia is forwarded to the central authority in the destination state. 

35. The central authority will then execute the request for service, or cause it to be executed by:

    a)a method prescribed by the internal laws of the destination state,

    b)a particular method requested by the applicant, unless that matter is incompatible with the internal laws of the destination state, or

    c)delivery to an addressee who accepts it voluntarily.  Alternative channels are provided for by the Convention, such as diplomatic or consular channels, or direct communication between judicial officers in Australia and judicial officers in the destination state. 

1. For the Convention to be applicable, the following requirements must be met:

   a)the document is to be transmitted from one state party to the Convention to another state party, for service in the latter.  The law of the forum state determines whether or not a document has to be transmitted abroad for service in the other state – the court notes the Convention is not mandatory.

   b)An address for the person to be served is known.

   c)The document to be served is a judicial or extrajudicial document.

   d)The document to be served relates to a civil or commercial matter. 

   If all these requirements are met, the transmission channels provided for under the Convention must be applied.  The court notes the Convention is exclusive. 

2. The court notes that the Australian Government entered into the Convention of 15 November 1965 on the service abroad of judicial and extrajudicial documents in civil or commercial matters on 1 July 2010.  The court further notes that Switzerland entered into the Convention in 1995.  In accordance with article 21, first paragraph (a), Switzerland designates the central Cantonal authorities as Central Authorities as referred to in article 2 and 8 in the Convention.  Requests for the service of documents may also be addressed to the Federal Justice and police department in Berne, which will forward documents to the appropriate central authority.  The list of central Cantonal authorities, including their addresses and phone numbers can be obtained online, at the following address: (omitted)

3. The court notes that the first respondent in the proceedings lives in Zurich.  The court further notes the central Cantonal authority for the Zurich area is listed as (omitted) Zurich. 

4. Article 5 of the Convention on the service abroad of judicial and extrajudicial documents in civil or commercial matters concluded 15 November 1965 provides:

   The central authority of the state addressed shall itself serve the documents or shall arrange to have it served by an appropriate agency, either:

   a) by a method prescribed by its internal laws for the service of documents in domestic actions upon the persons who are within its territory, or

   b) by a particular method requested by the applicant, unless such a method is incompatible with the law of the State addressed.

   Subject to sub-paragraph (b) of the first paragraph of this Article, the documents may be served by delivery to an addressee who accepts it voluntarily. 

   If the document is to be served under the first paragraph above, the Central Authority may require the documents to be written in, or translated into, the official language or one of the official languages of the State addressed. 

   That part of the request, in the form attached to the present Convention, which contains a summary of the document to be served, shall be served with the document.

5. When entering into the Hague Convention, each member state may declare reservations to the various articles.  The court notes that in respect of article 5, third paragraph, Switzerland has declared a reservation, as follows:

   “Switzerland declares that in cases where the addressee does not voluntarily accept the document, it cannot officially be served on him or her in accordance with article 5, first paragraph, unless it is in the language of the authority addressed, i.e. in German, French or Italian, or accompanied by a translation into one of these languages, depending on the part of Switzerland in which the document is to be served.” 

6. Regulation 21AF(2)(d) of the Family Law Regulations1984  provides that any application for request for service abroad must note the reservations under Article 5 and if appropriate translate the documents into the official language of that country.

7. The court notes that the list of Cantonal central authorities prescribes that the language for translation in Zurich is Deutsche, meaning what the court takes judicial notice is known in English as German. 

8. The court notes that schedule 1 of the Family Law Regulations1984, contains a draft form for use when undertaking service in accordance with the Convention. 

9. The court notes the current address of the respondent is that of his work place, (omitted), Switzerland. 

10. I find that the proceedings seeking change of name and provision of passport is a matter of which the father ought properly have notice and be served.  I decline to make the orders sought in the mother’s application in a case.

11. For the reasons I have set out in this judgement I make the following orders.

I certify that the preceding forty six (46) paragraphs are a true copy of the reasons for judgment of Myers FM.

Date:  10 October 2012