Service is a fundamental step in family law proceedings to ensure that all parties receive court documents. Generally, any application or document that is filed with the Federal Circuit and Family Court of Australia must be served on all parties to the proceedings, so they have knowledge of any claim on foot. There are different types of service and timeframes for service depending on the type of proceeding or document. When service is not conducted properly, it can lead to proceedings being delayed or even set aside.
Types of Service
Documents are most commonly served by way of personal service or ordinary service in family law proceedings. The general requirements for service of documents are set out in Rule 2.27 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”).
Personal service involves the documents being physically given to the person served, often by a process server who charges a fee. Documents can only be served by a person over the age of 18, who is not a party to the proceedings. If a party is legally represented and their legal representative is willing to accept service, documents can be sent to them in any manner as agreed with the legal representative, including via email or post. Initiating applications and subpoenas are examples of documents that must be served personally. Rules 2.35 and 2.36 of the Rules set out the requirements for personal service.
Ordinary service involves serving parties at their address for service. This can be found on any of their Court Applications or if they have filed a Notice of Address for Service. If the person does not have a known address for service, documents can be sent to their last known email address or home address either by delivering a sealed envelope or by post.
When documents have to be served
Best practice is for documents to be served as soon as practicable after they have been filed with the Court. Sealed copies of documents must be served within the timeframes prescribed by the Rules.
Any application must be served at least 7 days before a hearing of the application or 3 days before the hearing of an interim application pursuant to Rule 2.31 of the Rules.
Proof of Service
Documents proving service must be filed with the Court prior to any first court event.
In the case of personal service, the server must complete an affidavit of service and attach a copy of an acknowledgement of service if signed by the individual served wherever possible, and any documents such as photographs used to identify the individual served.
Proof of service can also be obtained by a party filing a notice of address for service or response, or by a lawyer signing an acknowledgement of service if service was conducted by giving the application to a lawyer.
What happens if I cannot serve the documents?
It is possible to make an application to the court seeking orders for substituted service or dispensing with service if you have difficulty serving the documents as required by the Rules. Often this is necessary where a party has been evading service.
You must provide evidence in the form of an affidavit outlining the steps you have taken to attempt to serve the documents, and other possible ways the documents could be served i.e. by email or Facebook.
The court has discretion to make orders for service by another method or dispensing with service requirements pursuant Rule 2.33 having regard to the factors listed under Rule 2.34.
If you need help serving documents or have been served with documents and are unsure about what to do next, R + M Law can provide you with specialist family law advice. To arrange an appointment with one of our family lawyers, please complete the enquiry form below or call us on (02) 6225 7040 or email at info@rmfamilylaw.com.au, or get started now online.