Recently, Olivia Wilde was in a midst of a press conference when suddenly, on stage, someone appeared with an envelope. They approached her and handed her documents. And with an instant, that person highlighted exactly the wrong way to go about serving your former partner with notice of upcoming Court proceedings. Now whether Jason Sudeikis knew that this was about to occur or not is the subject of much internet debate, however, what is clear, is that Olivia was properly served.
When you commence proceedings in Family Law matter, it is necessary to ensure that the other party is aware of the requirement to appear in Court on the listed return date. The process of ensuring they are aware is called “serving” them with the documents. In accordance with the Federal Circuit and Family Court of Australia Rules 2021, in the case of an Initiating Application, service is required to be “personal”. This means the documents must physically be handed to the named Respondent. Personal service often requires the appointment of a professional person, known as a Process Server, to attend at the Respondent’s place of work or home and seek to locate and identify the Respondent and hand them the necessary documents.
If the Respondent has a Solicitor appointed, that Solicitor can accept the documents on their client’s behalf, which is a far more efficient and cost-effective way of serving Court materials.
However, what do you do when you don’t know where your former partner lives or works? What if it has been many, many years since you have had any contact with them? The Court will not allow a matter to continue and possibly be resolved in the absence of the Respondent unless it is completely certain that all steps have been taken to locate and serve the Respondent and that they have chosen not to participate in the legal proceedings.
In these circumstances, it is necessary to make an Application for Substituted Service or for the requirement to serve the documents to be dispensed with.
Other ways that service can be properly affected on a Respondent to an Initiating Application, or an Application for Divorce can include:
- Service by registered post to their last known address – a search of the electoral roll is often required to establish this.
- Service by email.
- Service by Facebook messenger (very rarely ordered, but can occur); and
- Service by way of provision of the documents to a family member or new partner, with the expectation that they will bring the documents to the named Respondent’s attention.
The court will require good evidence that you have taken all steps necessary to locate the Respondent before allowing Substituted Service and in this regard, it is necessary to ensure that your Application for Substituted Service and supporting material is completed correctly and appropriately detailed.
If you are considering commencing proceedings for parenting orders, property settlement or divorce, and you are having concerns about locating and serving your former spouse or partner, then the expert Gold Coast Family lawyer team at OMB solicitors can assist you– contact us on 5555 0000 or via our website or social media.