Service – How to serve your former partner when they don’t want to be served

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.

Alternate means of effecting service include:

• By email, as a substituted service order – A Court is usually willing to make an order for service to be effected by email if there has been recent email communication between the parties. When attempting service by email it is advisable to request delivery and read receipts so that there is some evidence of the email being delivered and read. However, most parties are not likely to send a read receipt.

• By registered post, as a substituted service order – this will require the respondent to attend the post office to collect the documents and require them to acknowledge receipt of the post. This will assist in notifying the Court that the respondent is aware of the proceedings. However, this will require you to have a postal address for the respondent.

• Surveillance – if you are aware of the respondent’s address and/or place of work then you can arrange for surveillance of these areas. This process involves a person attending these addresses for several hours during the day and on a variety of days to catch the respondent. Once they sight the respondent, they will attempt service. In order to attempt this process, you must have a good photograph of the respondent for identification purposes and also ensure there are not apprehended violence orders or other Court orders in place that would prohibit any such steps.

• To another person, as a substituted service order – an order can also be made for the Court documents to be serviced on another person in substitute of the respondent and requiring the person served to then notify the respondent immediately. If you are aware of the respondent’s immediate family members or friends addresses and know they continue to communicate with the respondent, such an order may be sought.

• Arrest warrant – if all possible attempts at service have been exhausted the Court may issue a warrant authorising the state, territory and federal police to arrest the respondent and bring them to Court to be served. This is usually a very rare occurrence and only occurs in extreme cases where all possible attempts at service have been exhausted.

What if you do not know the respondent’s whereabouts?

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.