When serving an application for divorce, there are certain steps that must be followed, unless service is dispensed with by the court.
Upon the making of an application, the court will keep the original document while providing two copies. One is for the applicant, while the other must be served on the other party (respondent), along with a pamphlet outlining the effects of divorce, which is available from the Family and Federal Circuit Court registries in multiple languages.
Service of the application must be made to the respondent at least 28 days before the hearing, or 42 days if the person is overseas.
The personal service process
When serving an application to the respondent personally, any person above the age of 18 is able to serve the documents, except the applicant, as outlined in r 6.07(3) of the Federal Circuit Court Rules 2001 (Cth). Therefore, a friend, relative or a professional process server may be able to personally serve the documents to the respondent. For service using a professional process server, the documents must be handed in person to the respondent, and not with any other person who may reside with, or is employed with the respondent.
Serving the respondent
It may be the case that a professional process server, or other person tasked with serving the document to the respondent, may not be fully aware of who they should be serving the document to. Therefore, a server should ask the respondent for their details, such as their full name, name of their spouse, and when they were married. It may also be handy to provide a photo of the respondent as well.
If the respondent does not wish to take the documents, they should be placed in the presence of the respondent with words to the effect that the applicant wishes to seek a divorce from them, and the papers are from the Federal Circuit Court which will hear the application on the relevant date.
Once the documents have been served, the person who has served the documents should complete an affidavit of service that shows the time, date, and place where the documents were served. Furthermore, the affidavit must be signed and affirmed to be true either in the presence of a justice of the peace or a solicitor. It would also be advantageous if the respondent were to sign the affidavit of service as well.
The signed acknowledgement should then be attached (annexed) to the affidavit, and in circumstances where the respondent has refused to sign the form, the applicant may use the affidavit as evidence that the documents were personally served to the respondent.
Applicants who are able to identify the signature of the respondent, may complete an affidavit proving signature in the presence of a justice of the peace or solicitor.
Once everything has been completed, the applicant may post the documents, along with a postage-paid self addressed envelope, so the documents can be returned to the applicant. Upon the return of the form, the applicant should complete and sign an affidavit of service by post with all the relevant details.
Service to an overseas respondent
If the respondent is based in another country, it is important to find out whether Australia has an agreement with the other country in relation to civil proceedings, and such countries are referred to as a Convention country, as set out in reg 21AE of the Family Law Regulations 1984 (Cth). The other important detail, besides whether the respondent resides in a Convention country, is also whether the person is a citizen of that country.
If the respondent is in a Convention country, the documents may be sent to the registrar of the Family Court, who then forwards the documents to the respondent in the Convention country. For anyone who is unsure about the requirements of overseas service, they should check the Commonwealth Attorney General’s guide to Serving a legal document across international borders on their website.
For respondents in non-Convention countries, documents may be served by post or by using a process server in that country.
When service is not required
If an applicant wishes to have service waived, they must complete a separate application requesting that service of the application for divorce be waived. The application should include details such as when contact was last made between the parties, and any attempts to locate the respondent. The application should outline that all avenues of contacting the respondent have been exhausted, and such an application should be filed with the application for divorce.