Service is a very important and integral element of Court proceedings. This is the process of informing the respondent (i.e. your former partner) that you have commenced Court proceedings, providing them with a copy of the documents you have filed in Court and informing them of the next Court date. The Federal Circuit and Family Court of Australia (the Family Law Rules) have extensive provisions Rules have extensive provisions relating to service of documents and how this is to occur.
When Court proceedings are commenced the Rules generally require the respondent is to be personally served. Personal service on the respondent occurs when a person, other than the applicant, takes the documents to the respondent personally. This can be done by any adult, but most commonly it is done by a professional process server. If the respondent refuses to accept the documents the process server will usually leave the documents in the presence of the respondent whilst briefly notifying the respondent of the nature of the documents served.
Service is usually a straightforward process in most cases. However, in some circumstances, service can get complicated if the respondent’s whereabouts are unknown or the respondent knowingly dodges service. This can also create significant delays in the case as the case cannot effectively proceed without the other’s party’s participation and/or knowledge.
If personal service on the respondent cannot be affected, a Court will need to make an order for personal service to be dispensed with and for service to be effected through an alternate form.
This complicates the service process even further. If you are not aware of the respondent’s whereabouts then you will first be required to carry out a number of investigations to locate the respondent. There are numerous possible investigations, and what might be appropriate will depend on the circumstances of your case.
A. Electoral roll search – If the person is, or is likely to be living in Australia, and entitled to vote, this may be an effective means.
B. Subpoena – This is a legal document issued by the Court at the request of a party to a case. A subpoena compels a person to produce documents, give evidence at a hearing or both. Subpoenas can be issued to third parties and organisations requesting any information they may have in relation to the respondent. Depending on the circumstances of your case, subpoenas can be issued to schools, department of immigration and various other organisations to track down the respondent.
C. Location order – This requires a person or government agency, typically Centrelink, to provide the Court with any information they have in relation to the location of the respondent or children in the respondent’s care.
Effecting service needs to be handled efficiently and with the skill to identify likely issues at an early stage. All of the lawyers at Sarah Bevan Family Lawyers deal with serving parties on a daily basis.