Any document filed with a court must be served on the other party or parties. There are different rules as to how to serve documents of different types in family law matters. While documents that start the court process, also called initiating processes or initiating applications, are generally required to be served by hand, some other documents do not require personal service and it is enough to post or email them to the other party. A good way to think of serving initiating documents is that it is like serving in tennis: it starts the process.
The rules for service of family law documents are set out in the Federal Circuit Court Rules.
Service by hand
When a person starts family law proceedings, he or she must serve the application by hand on the other party. Service by hand is also required when issuing a subpoena requiring the attendance of a person at court to give evidence (Federal Circuit Court Rule, 6.06).
Service by hand, also called personal service, means that the documents must be handed personally to the person named as the other party. If there is more than one other party, the documents must be served personally on all of them. 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.
Can I serve documents on my ex myself?
In family law matters, the person to serve documents must not be the party on whose behalf the documents are served (Federal Circuit Court Rule 6.07). This means that even if you have a good relationship with your ex and they are expecting the documents, you cannot serve documents on them yourself. If there is another person who can serve the documents on your behalf, such as a mutual friend or family member, this is acceptable. However, it is often preferable to engage a process server to serve the documents.
Process servers are familiar with the requirements of personal service and are also impartial third parties, whose attendance to serve an unwelcome application will usually not inflame a situation. Process servers charge a fee of around $80.00 to serve documents in metropolitan areas. If you need to serve documents in a remote area and the process server has to travel to get there, they will charge you more. However, in remote areas it is often possible to get the police or the sheriff at the local court to serve documents for you.
What happens after personal service?
After an application has been personally served on a party, the person who served it must swear an affidavit of service. The affidavit of service sets out exactly where and when the personal was served and how the server knew it was the right person. For example, they may state in the affidavit ‘I said to the person, ‘Are you Kevin Smith?’ and he answered ‘Yes’.”
If there is uncertainty about the identity of the party served, or if the party disputes being effectively served, other measures may have to be taken to establish that the correct person was served, such as attaching a photograph to the affidavit of service identifying the person served as the person in the photo.
Service other than by hand
There are some family law documents that are not required to be served by hand. These include the following:
- Response to an initiating application;
- Application in a Case;
- Response to an Application in a Case
- Notice of address for service;
- Subpoenas requiring material to be provided to the court;
- Further affidavit;
If you are filing a Response to an Application, an Application in a Case, or a Response to 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, you must serve your documents to their address for service, which will be nominated on their Application or Response (Federal Circuit Rule 6.11). You can do this by hand, by mail, by fax or by email (if accepted). Be aware that not all lawyers accept service of documents by email and that you need to check what they have written as their address for service or call the firm and confirm whether they accept service this way.
If the applicant does not have an address for service, you can serve them at their last known address or place of business.
If you are self-representing and your contact details change, or if you change lawyers, you are required to file a Notice of Address for Service. This document does not need to be served by hand and can be posted or otherwise sent to the other party’s address for service.
Subpoenas requesting material from other parties, such as police or hospitals, are not required to be served personally and can be mailed and often emailed. It is always a good idea to check with the person or organisation being served as to their preferred method of service.
What if I cannot find the other party?
If you have made reasonable attempts to serve the other party and have been unable to do so, you can make an application to the court to dispense with service or to allow substituted service. This application is made as an Application in a Case.
If you cannot physically locate the other party, but you know that they check their mail, email or Facebook account, you can ask the court to make an order for substituted service (Federal Circuit Rules 6.14) If the court is persuaded that it is appropriate to do so, it may make an order allowing you to serve the other party by way of email or Facebook.
Dispensation of service
Under Rule 6.14 you could also ask the court for an order dispensing with service. This means the requirement for the other party to be served is dispensed with and the matter is allowed to proceed in their absence. This may be appropriate if the other party has been avoiding service or if the matter is urgent. For example, a parenting matter where the children are at risk.
If you are going to seek an order for dispensation or substituted service, you must file an affidavit setting out the attempts you have made to locate and serve the party.