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Published: 31 August 2018
Author: Samuel Fung
A friend of mine recently came to me with a conundrum.
He had lodged a divorce application online but had been unable to contact his ex-wife to serve her with documents, who had told him a few weeks ago that she was travelling overseas for a holiday. The divorce hearing was just around the corner and he did not want the case to fall through because of his failure to serve the documents.
Under rule 25.02 of the Federal Circuit Court Rules 2001, unless there is a joint application, the Applicant in a divorce application is required to provide court documents to the Respondent so that the latter is informed that there is a court matter on foot. This process is known as “service of documents”. The rationale of this provision is procedural fairness – giving the Respondent an actual chance to respond to the application with their legal arguments.
Keeping this in mind, the law has developed a number of rules surrounding service of documents.
In most matters, documents are sent via post to a Respondent, who then signs an Acknowledgement of Service and returns it to the Applicant via post.
To avoid situations where a Respondent receives the documents but ignores them and never returns the signed Acknowledgement of Service, one solution may be to serve the Respondent personally, i.e. in person.
Understandably, in family law matters, it is often the case that it may not be appropriate for the parties to have personal contact. As such, Process Servers are widely used as the “mailman” who personally visits the Respondent to serve them the court documents, much like delivering a registered postal package.
The Process server may visit the Respondent at their home or workplace, or even places where the Respondent frequents to serve the documents.
In such situations, rule 6.14 of the Federal Circuit Court Rules 2001 states that you may consider either seeking a court order for Substituted Service or a court order for Dispensation of Service.
A court order for Substituted Service would allow you to serve the court documents on a third party who the Court is satisfied is able to bring the court documents to the Respondent’s attention. It may be a relative, friend, colleague, employer etc.
A court order for Dispensation of Service states that you are no longer required to make further attempts to serve the court documents on the Respondent. To obtain this court order, the Court needs to be satisfied that you have already tried your best, i.e. that you have made all reasonable attempts to locate the Respondent to serve the court documents.
Seeking a court order for Dispensation of Service is often the last resort and is based on the principle that the Court will not have onerous expectations on you to locate the Respondent, especially when you are experiencing financial hardship and if further attempts to serve will cause you further financial hardship.
While there is no legal definition or guideline as to what constitutes “all reasonable attempts to locate” a person, the Court will generally be satisfied if you can show that you have at least attempted the following:
1. Searched the telephone book/electoral roll;
2. Phoned the Respondent to inform them of the application and to ask for their whereabouts;
3. Phoned the Respondent’s relatives/friends to inform them of the application and to ask for the Respondent’s whereabouts;
4. Contacted the Respondent’s last known employer to ask for the Respondent’s forwarding address;
5. Placed advertisements in local or overseas newspapers.
To apply for either of these court orders, you will need to complete a form called an “Application in a Case” and a supporting Affidavit which outlines your attempts at locating the Respondent, as well as any financial hardship that you may be experiencing. For further guiding questions when completing the Affidavit, you may refer to the court website.
With the advancement of technology, there has been an accumulation of case law which addresses this question.
Generally, personal service is preferred. However, if you have attempted all means to serve the Respondent in person to no avail, you may seek an order for Substituted Service whereby service is effected via email or other electronic means.
The challenge will be to satisfy the Court that the account to which you propose to serve the court documents is one that does, in fact, belong to the Respondent, that they do in fact access it regularly and that they will respond in a timely fashion once the court documents are brought to their attention.
Our team at RCT are experienced in dealing with complex service issues and we encourage divorcing parties to seek legal advice in relation to divorce applications to minimise any further, unnecessary stress that may arise along the way.
If you'd like to make an enquiry about a legal matter, talk about a career at RCT, or perhaps have a suggestion on how we can improve our service or even our website, we'd like to hear from you.
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