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Substituted service: What to do if you are having trouble serving documents

By May 9, 2019February 23rd, 2024No Comments

A spouse unwilling to agree to a divorce or property settlement negotiations may think they can prevent the matter proceeding by simply refusing to accept service of documents in the matter or sometimes by deliberately making themselves uncontactable and hard to find. However, when a party is having trouble serving documents to another party personally, there are other remedies including dispensation of service and substituted service.

“Service” is the process of sending or giving court documents to a party, which assures the court that all parties have received the documents that were filed with the court. It’s not possible for a spouse to personally serve documents on their ex-partner – the service needs to be arranged by someone 18 years old or older, who is known as the “server”.  This person can be a family member or friend, or a professional process server.  Service can be by post or by hand, and can be on the spouse personally or their lawyer, if their lawyer is willing to accept the documents.

But what happens if a party is unwilling to accept service of documents in a family law matter? If the party does not acknowledge postal service and pretends not to have received the documents, or when service is in person, refuses to take the documents from the server, a server is allowed to place the documents somewhere in their presence while stating what the documents are — this will fulfil service requirements.

However, if the server is not able to find the party to be served, and has taken all reasonable steps to find them, there are two options for moving forward, both of which require a court order: you can apply to the court for an order for “dispensation of service” or you can apply for an order for “substituted service”.

If an order for “substituted service” is granted, it becomes possible to serve documents on the person in a different way, for example on a third person who the court is satisfied will bring the court documents to the attention of the party to be served (such as a new partner or family member) or by other methods such as by email (if the Court is confident that the person will check their emails).

If an order for “dispensation of service” is made, the need to serve the documents is wholly eliminated. Again, all reasonable attempts to locate the party must have been made.

In a recent property settlement case in the family courts, it was noted that the husband had been “recalcitrant” and that he “appeared to be avoiding formal personal service” of affidavit material and applications filed by the wife. As a consequence the requirement of personally serving him was formally waived and instead, substituted service “could be effected by the delivery of sealed copies of documents to the premises [with] the delivery of sealed copies deemed as effective service”.

In other words, it was no longer necessary for the husband to actually be physically present at the premises he was believed to reside at, in order for service to be deemed to have taken place.

To apply to the court for either order, an applicant makes an application in a case and completes an affidavit. The affidavit will detail all attempts and efforts made to locate the party to be served. This may include information such as : when the spouse last saw, spoke to, or communicated with their ex and the circumstances; the ex’s last known address; details of their relatives and friends and any enquiries you made to them and any replies received;  information about employment the party had; information about child support details or spousal maintenance details, information about jointly held property and financial information of the parties; if the spouse is overseas, where they are and the circumstances they are there, and if there is any chance they will return to Australia;  any known reason why the ex is not contactable; what the costs of trying to find the ex ere, and if this has caused financial hardship; and any other information you think is relevant and may help the court in its decision. Note however that the court may still adjourn the case and instruct an applicant to take specified extra steps that could locate the party to be served.

Do you need assistance with making an application in a case and preparing an affidavit in relation to service of documents? If so, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.


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