Substituted Service

In Australian family law proceedings, legal documents must be properly served on the other party. This is a fundamental aspect of procedural fairness, allowing all parties the opportunity to respond and participate in legal proceedings. However, there are instances when personal service, the standard method of delivering court documents, is not possible. In such cases, an applicant may seek substituted service, a legal mechanism that allows for alternative methods of serving documents when the usual approach is impractical or ineffective. Substituted service plays a crucial role in ensuring that legal proceedings are not unfairly delayed or obstructed by a respondent who is avoiding service. This article examines the legal basis, application, judicial approach, and challenges associated with substituted service in family law cases in Australia.

Legal basis for substituted service in family law

The legal framework for substituted service in family law proceedings is set out in Rule 6.14 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. This provision enables a party to apply for an order permitting service by a method other than personal service if it is not practicable to serve the documents in the ordinary way. The court must be satisfied that reasonable steps have been taken to locate and serve the respondent in the ordinary manner before granting a substitution order.

The underlying principle behind substituted service is the need to provideprocedural fairness while preventing a party from frustrating proceedings by avoiding service. The Court must balance the applicant’s need to progress their case with the respondent’s right to be properly informed. This balance is particularly significant in family law, where disputes often involve sensitive issues such as child custody, property division, and spousal support.

When is substituted service necessary?

Substituted service is generally sought when a party cannot be located or is deliberately evading service. Common scenarios where an application for substituted service may be required include:

• the respondent is avoiding personalservice by refusing to answer the door, changing addresses frequently, or providing misleading contact details
• the respondent’s whereabouts are unknown, making it impossible to serve them in the usual manner. This may occur in cases where one party has moved interstate or overseas without informing the other
• the respondent resides in a location where personal service is impractical, such as remote areas where process servers cannot easily access them
• there are concerns about safety where personal service might expose the applicant or process server to potential harm, particularly in cases involving domestic violence.

When an application for substituted service is made, the court must be convinced that the alternative method proposed is reasonably likely to bring the proceedings to the attention of the respondent.

Methods of substituted service

Courts may approve various alternative methods of service, depending on the circumstances of the case. Some commonly approved methods include:

Service via email or social media

Given the increasing use of digital communication, courts have recognised email and even social media platforms (such as Facebook or Instagram) as valid channels for substituted service, particularly if the respondent is known to be active online.

Service by text message

Courts may allow documents to be sent via SMS, provided that there is evidence the respondent regularly uses their mobile phone and is likely to receive the message.

Service on a third party

If a close family member, employer, or friend is likely to be in contact with the respondent, the court may permit service through them, provided they can be trusted to pass on the documents.

Service by publication

In rare cases where no direct contact method is available, a notice in a newspaper or online publication may be permitted, particularly if there is evidence that the respondent regularly reads such publications.

Service at the last known address

If a respondent’s current location is unknown, the court may permit service at their last known residential or workplace address.

The appropriateness of each method depends on the likelihood that the respondent will receive the documents and be aware of the proceedings. Courts take into account evidence of past communication and the respondent’s known habits in deciding which method is most effective. For instance, in Colbert & Colbert [2022], the applicant husband was allowed to repeatedly use social media as a method of substituted service because he presented evidence to the court that the wife was active on Facebook and had previously used Facebook messenger as a means to communicate. Justice Middleton was satisfied that, in that case, the wife was accorded procedural fairness in terms of service.

Applying for substituted service

To obtain an order for substituted service, an applicant must file an Application in a Proceeding, accompanied by an affidavit that demonstrates that all reasonable efforts have been made to serve the respondent personally, and explaining why substituted service is necessary.

The affidavit typically includes:

• details of attempts to personally serve the respondent, including dates and locations
• evidence that the respondent is evading service, such as witness statements or communication records
• the respondent’s last known address, contact details, and information about any family or friends who may be able to reach them
• the proposed alternative method of service and why it is likely to bring the proceedings to the respondent’s attention.

The court will use the information in the affidavit to assess whether the proposed method is reasonable and effective in ensuring the respondent is made aware of the proceedings. If satisfied, the court will issue an order allowing substituted service to proceed.

Substituted service plays an essential role in family law proceedings when personal service is impractical or impossible. Australian courts carefully consider whether alternative service methods are reasonable and effective in notifying the respondent, balancing procedural fairness with the need to prevent delays in legal proceedings. While technological advancements have expanded the options for substituted service, challenges remain in ensuring that respondents are genuinely made aware of proceedings. For any advice about substituted service, please contact Go To Court Lawyers on 1300 636 846.