KAREN BOZAK AGAINST MARK SCULLY [2017] ScotSC 19 (27 March 2017)

KAREN BOZAK AGAINST MARK SCULLY [2017] ScotSC 19 (27 March 2017)

The registration of the Australian maintenance order must be set aside because the pursuer was not properly served with notice of the proceedings in accordance with Australian law, and there was no evidence to establish that service requirements were met. Even if service had been valid, the pursuer was not given sufficient time to defend the proceedings, as the decision was made before the deadline stated in the notice. The Scottish court also has no power to vary the order.

Citation
[2017] ScotSC 19
Parties
Pursuer: Karen Bozak; Defender: Mark Scully
Jurisdiction
Scotland
Judgment Date
27 March 2017
Procedural Posture
Appeal (summary Application) / Judgment After Hearing of Appeal
Outcome
appeal allowed; registration of maintenance order set aside; no expenses due to or by either party
Legal Topics
Child Maintenance, Reciprocal Enforcement of Maintenance Orders, Service of Process, Variation of Maintenance Orders
Family Law Private International Law Child Maintenance Reciprocal Enforcement of Maintenance Orders Service of Process Variation of Maintenance Orders

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Parties

Karen Bozak

Pursuer

Mark Scully

Defender

Procedural Posture

Appeal (summary Application) / Judgment After Hearing of Appeal

Legal Issues

  1. 1 Whether registration of an Australian child maintenance order in Scotland should be set aside due to lack of proper service and insufficient time to defend under the Maintenance Orders (Reciprocal Arrangements) Act 1972 as amended by the 1993 Order.
  2. 2 Whether the Scottish court has power to vary the registered maintenance order.

Ratio Decidendi

The registration of the Australian maintenance order must be set aside because the pursuer was not properly served with notice of the proceedings in accordance with Australian law, and there was no evidence to establish that service requirements were met. Even if service had been valid, the pursuer was not given sufficient time to defend the proceedings, as the decision was made before the deadline stated in the notice. The Scottish court also has no power to vary the order.

Court Disposition

appeal allowed; registration of maintenance order set aside; no expenses due to or by either party

Orders

  • Registration of the maintenance order made on 13 May 2016 is set aside.
  • No expenses due to or by either party.