Service of Documents in Family Law Matters
Any document filed with a court must be served on all other parties to the proceedings. There are different rules about service of documents in different types in family law matters. Initiating processes or initiating applications, which start the court process, must generally be served by hand, some other documents do not require personal service and can be posted or emailed to the other parties. A good way to think of service of initiating documents in court proceedings is that it is like serving in tennis: it starts the process.
The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 set out the rules for service of family law documents.
When a person initiates family law proceedings, they must serve the application by hand on the other party. This is also known as personal service. Service by hand is also a requirement when issuing a subpoena that requires a person to attend court to give evidence.
Personal service occurs when documents are handed personally to the person being served. When personal service is required and there is more than one other party, the documents must be served personally on all the other parties. When providing someone with personal service, someone must give the documents to them. If the other party does not accept the documents, the server can put the documents down in the person’s presence and tell them the nature of the documents.
Division 2.6.2 of the Family Law Rules sets out the requirements for effective personal service.
Can I serve the documents on my ex myself?
In family law matters, the person who serves court documents must not be the party on whose behalf the documents are being served. This rule is set out in Family Law Rule 2.35. This means that even if you have an amicable relationship with your ex and he or she is expecting the documents, you cannot serve the documents yourself. If a friend or family member can serve the documents on your behalf, this is acceptable. However, it may be preferable to pay a process server to provide service of the documents.
Process servers know the requirements of service and are impartial third parties, whose attendance to serve an unwelcome application is unlikely to inflame a situation. Process servers generally charge around $80.00 to serve documents in metropolitan areas. If you need to serve documents in a rural area and the process server has to travel to get there, they will charge a higher fee. However, in remote areas, you can often get the police or the sheriff at the local court to serve court documents.
What happens after personal service?
After an application has been personally served, the person who served the document must make an affidavit of service. The affidavit of service sets out where and when the person was served and how the server knew it was the right person. For example, they may state in their affidavit ‘I said to the person, ‘Are you Wendy Smith?’ and she answered ‘Yes’.”
If there is uncertainty about the identity of the party being served, or if the party disputes that they were effectively served, other measures may have to be taken to establish that the correct person has been served, such as attaching a photograph to the affidavit of service identifying the person who was served as the person in the photo.
There are some family law documents that do not have to be personally served. These include:
- Response to an initiating application;
- Notice of address for service;
- Application in a Case;
- Response to an Application in a Case
- Subpoenas requiring material to be provided to the court;
- Further affidavit;
If you are filing a Response to an Application, a further Affidavit, an Application in a Case, or a Response to an Application in a Case you will already be in contact with the other parties. In this situation, you must serve the documents to their nominated address for service, which they will have nominated on their Application or Response. This can be done by hand, by mail, by fax or by email (if accepted). Remember that not all lawyers accept service of documents by email. It is a good idea to check what they have written as their address for service or call the firm and check if they accept service this way.
If the applicant does not have an address for service, they can be served at their last known address or place of business.
If you are representing yourself and your contact details change, or if you change lawyers, you are required to file a Notice of Address for Service providing the updated contact details for service of documents. This document does not need to be served by hand. It can be posted or otherwise sent to the other party’s nominated address for service.
Subpoenas requesting material from other persons or organisations, such as police or hospitals, do not have to be served personally. They can be mailed or often emailed. It is always a good idea to check with the person being served as to what is their preferred method of service.
What if I cannot find the other party?
If reasonable attempts have been made to serve a party and have been unable to do so, you can make an application to the court for service to be dispensed with or for substituted service to be allowed.
Court’s discretion in relation to service
If you cannot physically locate the person, but you know that they check their post, email or Facebook account, you can ask the court to order service of a document in a way that is not provided for in the Rules. The court’s discretion in relation to service is set out in Rule 2.33.
If the court is persuaded that it is appropriate, it may make an order allowing you to serve the person by way of post, email or Facebook.
Dispensation of service
When a person is unable to be found, it is also possible to ask the court for an order dispensing with service. This power is contained in Rule 2.34. When the court makes an order under this Rule, it means the requirement for the person to be served is dispensed with altogether and the matter can proceed in their absence. This may be appropriate where all reasonable steps have been taken to serve the document, where a party has been avoiding service or where the matter is urgent. For example, in a parenting matter where the children are at risk.
If you are seeking an order for dispensation of service or substituted service, you must file an affidavit setting out the attempts that have been made to locate and serve the party.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.