When you start a legal case against your partner or former partner, you’ll need to ‘serve’ them with a copy of any court application filed by you (and any other accompanying documents you filed when you initiated proceedings), even if your former partner is currently living overseas.
The service of legal documents is an important step in beginning any legal proceedings, as it ensures that the other party is fully aware of the legal matter and has all important information they require to respond.
Here, we’ll explain everything you need to know about the overseas service of documents, including how you can proceed if your partner cannot be located.
How do I serve Family Law documents overseas?
Where family law proceedings have been initiated in Australia, ‘personal service’ or ‘service by hand’ of the Application and all accompanying documents must be affected on all parties to the proceedings – even if they are overseas.
A ‘process server’ will need to be arranged to affect the service of documents, unless the other party (or parties) have a solicitor acting on their behalf that has instructions to accept service of the documents for them.
Fortunately, we have a number of contacts in various overseas jurisdictions that have been able to assist us in arranging the service of Australian family law applications overseas.
There are certain time limits and rules in place about when documents must be served. In any event, it should be done as soon as practicable. If you are unable to affect service of your application within the required timeframe, this could delay the hearing of your matter.
What can I do if I don’t know where my partner lives or service of documents has been unsuccessful?
If you’re unsure where your partner or ex-partner currently resides, or if you’ve made reasonable attempts to serve documents and have been unable to, you can apply to the court for an order of substituted service or dispensation of service.
Substituted service allows you to serve documents on a third party (such as one of your partner’s family members). In order to do this, the court must be satisfied that those documents will be brought to the attention of your ex-partner.
Alternatively, dispensation of service allows you to avoid serving documents altogether. You’ll need to satisfy the court that you have made all reasonable efforts to serve your partner or ex-partner and have been unsuccessful in your attempts.
How do I apply for substituted service or dispensation of service?
If you think you need to apply for either substituted service or dispensation of service, then you should speak to a lawyer immediately. They will be able to advise you on whether the Federal Circuit and Family Court of Australia will grant your application. Generally, the factors they consider include:
- Whether you have taken reasonable steps to serve documents to your partner
- Whether your partner could become aware of the existence and nature of the documents through advertisement or another form of communication that is readily available to you
- The approximate cost of you serving the documents and your means
- The nature of the proceedings brought before the court
If you need to file an Application with the Court for dispensation of service of substituted service, you’ll also need to file an Affidavit. This is a sworn document that outlines the steps you’ve taken to serve documents to your partner. You should include:
- The last-known whereabouts of your partner
- Efforts you have made to locate your partner or ex-partner, including copies of any communications you’ve had with them or their family members
- Any employment details you have for your ex-partner, and proof you’ve communicated with that workplace to locate them
- Details on your attempts to serve your ex-partner
- Details of any joint assets you and your partner hold, including property and bank accounts
- Details of any child support, maintenance agreements or court orders
- The costs you’ve expended in trying to serve your ex-partner, and any financial problems you may be facing as a result.
If the court is satisfied that you have made all reasonable efforts to locate your ex-partner and serve them with documents but have been unable to, then they may order substituted service or dispensation of service. This will then allow you to proceed with your family law matter without the other party being present or providing a response. Ultimately, this may mean that the Court will grant you the Orders that you are seeking (provided it is just and equitable for them to do so).
We take into account the constantly changing business and personal circumstances of our clients.