All documents filed with a court must be served on all other parties to the proceedings. Service of initiating documents starts court proceedings. In Family Law matters there are different rules about how different types of documents must be served. Whilst 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.
The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 set out the rules for service of Family Law documents.
Personal service
When a person initiates family law proceedings, they must serve the application on the other party by hand (personal service). Service by hand is also required when issuing a subpoena requiring a person to attend court to give evidence.
The person providing someone with personal service must personally hand them the documents. 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. When there is more than one other party and personal service of documents is required, all the other parties must be served personally.
The requirements for personal service are set out in Division 2.6.2 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
Can I serve the documents myself?
Rule 2.35(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 sets out that the person serving court documents must not be the party on whose behalf the documents are being served. Even if you have an amicable relationship with your ex and he or she is expecting the documents, you cannot serve the documents yourself. It is acceptable for a friend or family member to serve the documents on your behalf.
However, pay a process server to serve the documents is a preferable alternative. Process servers know the requirements of service and are impartial third parties. Their attendance to serve an unwelcome application is less likely to inflame a situation. Process servers generally charge around $80.00 to serve documents in metropolitan areas. Serving documents in a rural area, the process server will charge a higher fee if they have to travel to get there. In remote areas, the police or the sheriff at the local court may agree to serve court documents.
What is an affidavit of service?
After personally serving court documents, the person who served the document must make an affidavit of service which 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 Fred Blog?’ and he answered ‘Yes’.”
If the person disputes that they were effectively served or the identity of the person being served is uncertain, other measures may have to be taken to establish that the correct person has been served. For example, attaching to the affidavit of service a photo identifying the person in the photo as the person who was served.
Ordinary service
Some family law documents that do not have to be personally served. These include:
- Response to an initiating application;
- Application in a Case;
- Subpoenas requiring material to be provided to the court;
- Response to an Application in a Case; and
- Notice of address for service.
Further affidavit
If you are filing a Response to an Application, an Application in a Case, a further Affidavit, or a Response to an Application in a Case, you will already be in contact with the other parties. In this situation, the documents must be served on their nominated address for service, which they will have nominated on their Application or Response. This can be done by hand, by fax, by mail, or by email (if accepted). If an applicant does not have an address for service, they can be served at their last known place of business or address.
Not all lawyers accept service of documents by email – you should check if their address for service includes an email address or call the firm and check if they accept service by email.
If you change lawyers or if you are representing yourself and your contact details change, you must 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, faxed or emailed 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. However, it is prudent to contact the person being served and enquire as to their preferred method of service.
What if I cannot find the other party?
If, after having made reasonable attempts, you have been unable to serve a party, you can apply to the Court for substituted service to be allowed or for service to be dispensed with.
Court’s discretion in relation to service
If you cannot physically locate the person, but you know that they check their post, Facebook or email account, you can ask the court to order service of a document in a way that is not provided for in the Rules (Rule 2.33 Federal Circuit and Family Court of Australia (Family Law) Rules 2021). If the court is persuaded that it is appropriate, it may make an order allowing you to serve the person by post, Facebook, or email.
Dispensing with service
When a person is unable to be found, it is also possible to ask the court for an order dispensing with service (Rule 2.34 Federal Circuit and Family Court of Australia (Family Law) Rules 2021). 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 the matter is urgent, or where a party has been avoiding service. 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 you have made to locate and serve the party.
Where to now?
Contact us for free legal advice by telephone or legal representation in Family Law matters
