Any document that is filed in a family law matter is required to be served on all other parties. There are different rules for service of different types of documents. Some documents must be served personally while others are permitted to be posted or emailed to other parties. This page deals with serving documents in family law matters.
The rules for service of family law documents are set out in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
Personal service in family law matters
In some situations, service of family law document must occur by hand. This is also known as personal service.
Personal service is required when:
- a party initiates proceedings
- a party issues a subpoena that requires the attendance of a person to give evidence.
Personal service occurs when documents are handed personally to the person named as the other party. If there is more than one other party in a proceeding, then the initiating documents and subpoenas filed in the matter must be served personally on all of them.
When documents are served personally, someone must give the recipient the documents. If the recipient does not take the documents, the server can simply put them down in the person’s presence and tell them their nature.
Can I serve documents on my ex myself?
Under Family Law Rule 2.35, family law document must not be personally served on one party by the other party. This means that even if you and your ex have an amicable relationship and they know that the documents are coming, you must get someone else to serve the documents on them. This may be a mutual friend or another family member. It can also be a process server.
What happens after personal service?
After an application has been personally served, whoever delivered the documents must complete an affidavit of service. This affidavit specifies exactly where and when the documents were served and how the person serving the documents knew that they were giving them to the correct person.
If the person serving documents knows the person, this will not be an issue. If the person does not know the recipient personally, they may ask them if they are the person named in the documents. They may then state in the affidavit of service, for example, ‘I said to the person, ‘Are you Jenny Hanson?’ and she answered, ‘I sure am’.”
If there is any doubt that the correct person was served, or if the party denied having been served with the documents, a photograph may have to be attached to the affidavit stating that this is the person who was served.
Serving documents other than by hand
Some family law documents do not require personal service. These include the following:
- Divorce applications
- Responses to initiating applications;
- Applications in a Case;
- Responses to Applications in a Case
- Subpoenas requiring material to be provided to the court;
- Further affidavit;
- Notices of address for service;
If you are filing a Response to an Application, a Response to an Application in a Case, an Application in a Case or a further Affidavit you will already be in contact with the other party or their lawyer. In this situation, the documents must be served to the address they have nominated as their address for service.
This can occur by hand, by fax, mail, or by email (if accepted). Be aware that some lawyers do not accept service of documents by email.
If the applicant has not nominated an address for service, you can serve them at their last known address or place of business.
If you are representing yourself and your contact details change, you must file a Notice of Address for Service. You should also do this is you change lawyers during a matter. This document can be posted or to the other party’s address for service.
Subpoenas requesting records from agencies that are not parties to the proceedings, such as police departments or hospitals, do not have to be served personally. They can be mailed and often emailed. It is a good idea to check with the agency being served what their preferred method of service is.
What if the other party cannot be found?
If a party has tried to serve another party and been unable to locate them, they may apply to the court for an order dispensing with service or allowing substituted service. This application is made as an Application in a Case.
If reasonable attempts have been made to locate a person and they have not been found, or it appears they are avoiding service, an order may be made dispensing with service.
If it is known that a party is contactable online but cannot be located at their address to effect personal service, the court may order that substituted service be allowed. This order may be fore service to occur by email or via Facebook.
If a party intends to apply for dispensation of service or substituted service, they must file an affidavit setting out their attempts to locate and serve the other party.
If you require legal advice or representation in any legal matter, please contact Taylor Rose.
