Serve Family Law
Australia – Federal Circuit and Family Court of Australia (FCFCOA)
Western Australia – Family Court of Western Australia (FCWA)
New Zealand – New Zealand Ministry of Justice (NZMoJ)
There are many matter types brought before the Courts under the heading Family Law. Most commonly are matters of children’s care and custody (Application seeking Children’s Orders) and/or the apportionment of joint property to the respective parties (Application seeking Property Orders). Beyond these are also applications for child support, paternity, contravention, enforcement, maintenance and other miscellaneous matters. In virtually all cases, there is an alternate party or parties, who must be served with a copy of the documents, so as they have the opportunity to give their input on the matter.
When a person starts family law proceedings, he or she must serve the application by hand on the other person. Service by hand, also called personal service, means that the documents must be handed personally to the person named as the other party. While the documents don’t technically need to be placed in their hands, they must at the very least be made aware of the documents personally, sometimes by placement, when the other side does not wish to be served.
If there is more than one other party, the documents must be served personally on each person. When serving someone with documents personally, someone must give the documents to them. If the other party does not take the documents, the server can put the documents down in their presence and tell them what the documents are.
What happens if the process server can’t serve the other person, because they’re avoiding being served? There a many ways to deal with this situation. After reasonable efforts have been made to bring the documents to the attention of the other side, there are a number of directions you and/or the Court may wish to take your matter, of which involve making an application to the Court. You can seek an order from the Court for ‘substituted service’ or alternatively for ‘dispensation of service’, or after extended efforts to serve have shown the alternate party simply won’t cooperate proceed to an ‘undefended hearing’. Just remember that these are more complicated processes, that will probably need the assistance of a trained legal practitioner, if your matter heads in this direction.
Substituted service is a method to progress your matter when the other side is avoiding service, yet there are circumstances to suggest an alternate method of forwarding the documents will most likely bring them to the attention of the other person. The order made in the end could say that service is to be effected by posting the documents in combination with emailing the documents and leaving a copy of the documents at the address. For the court to make this type of order, you will usually need to have attempted to personally serve a number of times, in combination with potentially attempts to call, text messages or emailing the other side. The efforts of the attempts to serve are then detailed in an affidavit of attempted service which supports you application to the court.
Dispensation of service is another method by which the Court may allow your matter to go forward, where you are unable to serve the other person. While this option is available to the court to make orders, it is more commonly applied in divorce matters, than family law. This is because family law usually involves more significant circumstances such as the care and custody of children and apportionment of assets from a matrimonial pool, when a relationship has broken down. Dispensation of service involves the Court making an order that the need for personal service is dispensed with. Circumstances which may support this type of order being made are usually along the lines of the other person is demonstrating little interest in the matter, nor the outcome of the matter. Once again, for the Court to make an order for dispensation of service, you must demonstrate to the Court in an affidavit the attempts you’ve made to personally serve the other person and the results of those attempts.
Undefended Hearing is probably the least preferred approach of the Court, however available as an option to allow matters to proceed in special circumstances. Sadly, there are some matters where the other party simply will not cooperate in dealing with the matters of the children or the property split. They are often under the misapprehension that if they are never served, the matter can not proceed. This is not the case. The Court has many tools available to it to deal with matters where persons are seeking to avoid or frustrate the process. While this option is available, it is the least favoured by the Courts, as while probability is low that the other person genuinely did not know about the Court process, the Court will usually need to leave the opportunity open for the matters to be reheard down the track if need be.
More information about Substituted service and Dispensation of service is available on the Federal Circuit and Family Court of Australia website on the page ‘How do I serve family law documents?’ and ‘Are you having trouble serving your divorce application?’
If service goes as expected, with the third party or process server being able to effect the service and possibly obtain a signed acknowledgment of service, the person serving the documents must complete and swear and Affidavit of Service in the approved form of the court (FCFCOA, FCWA). The completed and sworn affidavit should be scanned and uploaded in the appropriate Court Portal or for NZMoJ, forwarded to the registry for filing. If a process server has performed the service of your matter, it is usual that they will email you a pdf copy of the sworn affidavit ready to upload.
If you’re ready to proceed to serving your documents, please follow our Step-by-Step guide to serve family documents.