Sompe and Sompe

[2010] FamCA 47

FAMILY COURT OF AUSTRALIA

SOMPE & SOMPE [2010] FamCA 47

FAMILY LAW – PRACTICE AND PROCEDURE – Substituted service

Family Law Act 1975 (Cth)

APPLICANT: Ms Sompe

RESPONDENT: Mr Sompe

FILE NUMBER: MLC 11085 of 2009

DATE DELIVERED: 19 January 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 19 January 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Shifrin

SOLICITOR FOR THE APPLICANT: David Stagg Tonkin & Company

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT: Kerr & Thomas

Orders

1. That all outstanding applications for interim orders be adjourned before me at 9.00am on 3 February 2010.

2. That the following documents be served upon the husband forthwith by post by way of substituted service addressed to him at:

   (a)…; and

   (b)C/- Kerr and Thomas, Solicitors …

   viz:

   i.      Copy of the application filed 10 December 2009;

   ii.     Copy of the application filed 19 January 2010;

   iii.     Copy of the wife’s affidavit filed 10 February 2009;

   iv.Copy of the wife’s application for contravention filed 10 December 2009;

   v.     Copy of the affidavit of Mr H filed 19 January 2010; and

   vi.     Copy of the order made this day.

3. That the reasons for judgment this day be transcribed and be placed on the file.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

2. That the wife’s costs of this day be fixed in the sum of $550 and reserved to the next hearing date.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MCL 11085 of 2009

MS SOMPE

Applicant

and

MR SOMPE

Respondent

REASONS FOR JUDGMENT

1. This is an application filed by the wife on 10 December 2009.  In fact, it is two applications, one seeking the enforcement of a financial agreement, dated 10 April 2008, and the second is a contravention application relating to the same issue.

2. The application is supported by an affidavit of the wife.  It transpires that the documents have not been served on the husband, although a number of attempts have been made.

3. By leave of the court today, an application has been made for substituted service and that the proceedings be bought back on a subsequent date.  I propose that date be 3 February 2010 at nine o’clock before me.  The application for substituted service is on the basis that a process server, who has provided affidavits of his attempts, indicates that he went to the house on 18 December and then a subsequent five occasions and then again on 16 January 2010.

4. On 18 December, the process server spoke to a woman at the address, who advised that she and her family had lived at the address since they had had the house built but did not know Mr Sompe.  Undeterred, it appears that the process server went back some five days later and again on 24 December, 29 December, 30 December and 31 December at a variety of times during the day and night.  I quote from the affidavit.  It reads:

   On all visits to the address there has either been no contact or I have spoken to the wife/partner of the respondent who always advises the respondent is not home and that she has no idea when he will be home.  I phoned the respondent on the given mobile number, the respondent advised he is happy to accept the documents but it is not convenient as he going away for a holiday, he said he’d be back at the address later in January 2010.

5. Again undeterred, the process server went back on 16 January.  On this occasion he spoke to a female at the address, approximately 25 years of age.  She advised:

   The respondent is away on holidays and that she is not sure when he will return.  She said he will be contacting her today or tomorrow and advised when he will be home. 

6. It is quite clear that the respondent is not making any serious attempt to sort this matter out.  One might conclude that he might be a little puzzled about someone knocking on his door and inquiring about him, but after the sixth or the seventh attempt, when identification has been provided and the sorts of answers have been given, not to mention the telephone discussion with the process server I can conclude that he is not entirely co-operative.

7. What is of considerable concern is that the process server deposes to the fact that on each of those seven occasions, he has travelled 30 kilometres from the court house at Dandenong and, as such, he is charging the wife a significant sum of money which, she says in her affidavit to her solicitor, that she can ill-afford.  Whilst, ultimately, that may be a problem for the husband, at this stage, I see no reason why she should continue to put her hand in her pocket when the husband is not being cooperative.

8. In those circumstances, it is appropriate that the documents can be sent to him by mail.  It is also significant in this case that the solicitor acting for the wife had known that the husband was represented by lawyers.  The firm name is Kerr and Thomas.  The solicitor for the wife indicated that he spoke to the solicitor for the husband whose response was that he had no instructions to accept service of the documents.  Whether he has instructions or not, I at least have an avenue in which I can expect a practitioner, who is an officer of this court, to at least make an attempt to bring the documents to his client’s attention, having regard to the matters to which I have just referred.

9. In those circumstances, I propose to make the orders that I have already mentioned.  The matter can come back to me on 3 February 2010.  I also note on the record that I have canvassed with counsel appearing for the applicant, the nature of the application seems to me to be simply seeking order reiterating the obligations under the agreement, and it may be sensible for the wife to look at a default type enforcement provision that might make the task a little easier on the next occasion.

10. I shall reserve the wife’s costs of counsel of $550 today as well.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin.

Associate: 

Date:  1 February 2010