By Sharla Stevens
Service of documents: When you start an application in court you are required to personally serve the other person, usually your ex-partner, with your application. This includes applications for parenting, property and divorce matters. “Personal service” means that the documents are handed to the person, rather than being posted or emailed. When you know where your ex-partner lives or works it is not usually an issue to arrange for someone to personally serve them.
What can you do, though, when you don’t know where they live or work?
The Court expects you to make reasonable attempts to find that person, which may include trying to telephone, email or text message them asking for their address. It may also include contacting any mutual friends or any family members of theirs that you have contact details for to try and locate the person. It may also be that you know where the person lives but, for some reason, the person you have asked to serve the documents has not been able to meet the person to give them the documents.
If you are unable to find an address or the person you have asked to serve the documents has been unable to do so, you can then make an application to court for substituted service. In your application, you can ask the Court for permission to serve your ex-partner with your documents in some way other than personal service. So, in a situation where you know their address you may ask for permission that you can serve the documents by mailing the documents or if you don’t know their address you may ask for permission to serve the documents by email or perhaps on a close family member, such as their parents, if you know they are in contact. You must provide the Court with evidence, though, about what reasonable attempts you have made to locate and serve the person. You also need to tell the Court how your proposal to serve the person will ensure that they receive the documents. For example, you cannot serve the documents by email to an email address that your ex-partner hasn’t used in some time and doesn’t check regularly.
Another method that is becoming more common now is to ask for permission to serve someone through Facebook. You may either be in contact with or be “friends” with your ex-partner on Facebook. In the recent case of Maguire & Klein [2016] FamCA 874 the applicant father asked for permission to send a private message to his ex-partner on Facebook advising her of the proceedings. In the Facebook Messenger app you have the ability to see when the recipient has read your message. The applicant was able to show the Court that the message had been marked as read and that it was presumably read by the mother. The Court accepted that the mother had been served and as she did not attend Court the Judge made orders in her absence.
For more information you can read this case here: http://www.austlii.edu.au/au/cases/cth/FamCA/2016/874.html
If you require assistance with serving documents on the other party in your matter or about any family law matters more generally please contact Cristina Huesch or one of our solicitors Sharla Stevens or Angela Li on (02) 6223 2400.
