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Serving documents in Family Law Act matters

Information about how documents are to be served on the other parties in a family law dispute.

This page incudes the following information about service:

What is service?

Service means the process of sending or giving court documents to a party. Court documents must be filed with the court before service can take place. The purpose of serving documents is to make sure that all parties have received the documents that have been filed at court.

How are documents to be served?

Parties must follow the court rules when they are serving documents. These rules may differ depending on the kind of documents that need to be served and which court the matter is being heard in.

See Part 2.6—Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)(opens in a new window).

Court may vary service requirements

A court has the power to change the way that service is to be carried out.

See r. 2.33—Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)(opens in a new window).

Federal Circuit and Family Court

Table 2.2 in the Family Law Rules sets out how service must be carried out for different types of court documents. Initiating applications must be served by special service and subpoenas have to be served by hand.

See Rule 2.28, Table 2.2— Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)(opens in a new window).

Personal service

Special service means that the document has to be personally received by the person who is served. Special service can also be done by serving it to a lawyer who has agreed to accept service on behalf of a client. This may be done by serving the documents by hand, by post or by electronic service.

See Division 2.6.2, rr. 2.27, 2.35, 2.36—Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)(opens in a new window).

Special service by hand

Under the Family Law Rules, service by hand means that a copy must be given to the person who is to be served. If that person refuses to take the document the server can place the document down in their presence and tell the person what the document is.

One party cannot serve a document on another party but they may be present when that party is served.

See r. 2.35—Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)(opens in a new window).

Service by post or electronic communication

A document may be served within Australia by sending a copy to the person's last known address by post. A document may also be served by electronic communication (such as by email or fax). If a document is served electronically the sender must include an Acknowledgement of service for the person who is served to sign.

Note: If proof of service is required, a person who has served another party by electronic communication will need to produce a signed 'Acknowledgement of service' unless service was made by fax.

See s. 7.07—Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)(opens in a new window).

Proof of service

The court may require proof that the party has been served with documents. The way to prove that the other party(s) have been properly served is by the party signing an 'Acknowledgement of Service'. They will also have to give evidence identifying the signature of the respondent.

If the other party is trying to avoid being served they may refuse to sign the 'Acknowledgement of service'. To get around this problem, the person who has served the documents on the party can swear an 'Affidavit of service' stating that they have identified the other party and have served the application or documents on that person.

The forms are available from the Federal Circuit and Family Court website, see Federal Circuit and Family Court—Family law forms(opens in a new window).

See r. 2.32—Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)(opens in a new window).

Time limits

Family Court

An application that is filed in court must be served as soon as possible on the other parties in the proceeding. It must not be served later than 12 months after it has been filed unless the court orders this.

See rr. 2.27, 2.29—Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)(opens in a new window).

Responding to an application

A party may respond to an application by filing and serving a 'Response' (and any affidavit filed with it). They must do this at least 7 days before the date fixed for hearing the case assessment conference, procedural hearing or hearing that the response relates to.

If the party wants to file a 'Reply' (a response to a response), this must be filed and served as soon as possible after they receive the 'Response'.

All affidavits that relate to an 'Application in a proceeding' or a 'Response to an application in a proceeding' must be filed at least 2 days before the date fixed for the hearing.

See rr. 2.18, 2.21, 5.07—Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)(opens in a new window)

Calculating time

When calculating time relating to the date of a particular court event, the day of that event is not counted. For example, if the court hearing is on Friday, then documents must be served by the Monday before. Days when the registry is closed are not counted. The registry is closed on weekends and on public holidays. So for example, if the court hearing was set for a Monday, then all documents for that hearing must be served by the Tuesday before.

See r. 15.05—Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)(opens in a new window)

Dispensing with service or placing conditions on service

Sometimes a respondent either cannot be found or evades service of court documents. Parties can apply to court for an order for service to be either substituted or dispensed with altogether.

They will have to explain in an affidavit, all of the steps that they have taken to try to find the respondent.

The applicant should state when they last had contact with the respondent, what their most recent address is and the names of the nearest relatives and friends of the respondent and what enquiries they have made to these people to try to locate the respondent. The affidavit should also state who the respondent's last known employer was and what enquiries have been made at that workplace to try to find the respondent.

This affidavit should also detail the current child support or maintenance arrangements or order. Any correspondence from the child support registrar should be attached to the affidavit.

If the respondent lives overseas, add the details of the country where they are believed to be, how long they have been there and if they plan to move back to Australia.

The costs associated with trying to find the respondent and whether this cost is causing any financial difficulties should also be mentioned.

Substituted service

Substituted service is when the court allows another person (such as a family member or friend) to be served on behalf of the respondent. It can also mean when a person is served via their workplace or by post.

Dispensation of service

A dispensation of service is an order from the court that dispenses with the requirement for a party to be served with documents. This will only be granted in exceptional circumstances.

If an application is not able to locate the other party for the purpose of serving documents, they can seek an order from the court asking that the documents be served in another way or asking for service to be dispensed with altogether.

When making a decision, the court will consider:

  • how the applicant intends to bring the document to the attention of the other party, and
  • whether all reasonable steps have been taken to serve the document
  • whether the person to be served could reasonably become aware of the existence of the document by advertising or by some other form of communication
  • how much this service is likely to cost
  • the kind of matter that is being dealt with by the court.

If the court makes an order that service has been dispensed with unconditionally, or dispensed with provided that certain conditions are complied with, the document is taken to have been served.

How to apply for dispensation of service

The party who is seeking for service to be dispensed with needs to file:

  • Application in a proceeding
  • Affidavit

See r. 2.34—Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)(opens in a new window). and Forms.

More information

Legislation

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

  • r. 2.18—when to respond to an application
  • r. 2.21—how to reply to a response
  • r. 5.07—time for filing affiavits
  • r. 15.05—calculating time
  • r. 2.33—court's discretion in relation to service
  • Part 2.6—Service
  • r. 2.28—manner of service (Table 2.2)
  • r. 2.27—general requirements for service
  • r. 2.29—general time limit for service
  • r. 2.32—proof of service
  • r. 2.34—service with conditions, or dispensing with service
  • r. 2.35—personal service
  • r. 2.36—personal service through a lawyer
  • r. 2.40—ordinary service
  • r. 2.41—when service is effected
  • r. 2.38—special service on a prisoner

See Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)(opens in a new window).

Reference

Federal Circuit and Family Court

See:

Updated