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Service of Court Documents
Service of court documents, such as a divorce application, in the Federal Circuit and Family Court of Australia involves delivering the documents to the other party (known as "respondent") in a manner that ensures they are aware of the proceedings. This can be done personally (by handing the documents directly to the respondent) or by post (using registered mail to the respondent's last known address).
Proper service is crucial as it ensures the recipient has received the documents and has an opportunity to respond, maintaining fairness in the legal process. The server (person serving the documents) must complete an Affidavit of Service which then needs to be filed with the court to confirm that the documents have been served on the respondent in accordance with legal requirements.
Methods of Serving Documents
There are two common methods of serving court documents: (1) service by hand, and (2) service by post.
1 - Service by Hand
Service by hand, also known as personal service, is a method of delivering court documents directly to the recipient. This ensures that the respondent receives the documents in a manner that is verifiable and recognised by the court. The Federal Circuit and Family Court of Australia has specific rules and guidelines governing this process.
Who Can Serve Documents: Documents must be served by a person who is not a party to the proceedings and is over 18 years old. (the server can be a party's relative or friend, etc).This ensures impartiality and compliance with legal standards.
How to Serve by Hand
Direct Delivery:
Hand the document directly to the respondent to be served and ask them to sign the Acknowledgement of Service form.
If the respondent refuses to accept the document, you can place it down in their presence and inform them of its nature. This counts as valid service.
Proof of Service:
After serving the document, the server must complete an Affidavit of Service. This affidavit includes details for the court indicating how and when the service was carried out.
The affidavit must be filed with the court to provide official proof that the documents have been served according to the rules.
Affdavit Proving Signautre:
In certain matters (such as divorce), the Applicant may need to provide corroborative evidence in support of service of documents. For instance, where the server does not personally know/recognise the person who is being served with documents, then the applicant may need to provide further corroborative evidence. This can be done by the applicant by completing an Affidavit Proving Signature.
The person (e.g., a lawyer or a justice of peace) who witnesses the Affidavit Proving Signature must also sight the Acknowledge of Service and complete the Annexure Note at the end that Acknowledge of Service.
Special Considerations
Service on a Company:
When serving a company, deliver the documents to a director of the company or leave them at the company’s registered office with someone who appears to be in charge.
Timing and Deadlines:
It is crucial to serve documents within the timeframe specified by the court rules or court orders (usually 28 days for service within Australia and 42 days for service outside Australia). Failure to do so may result in delays or adjournments in the proceedings.
2 - Service by Post
Overview: Service by post is a method of delivering court documents through the mail to the recipient’s address. This method is governed by specific rules and guidelines to ensure the documents are properly served.
Types of Documents Suitable for Service by Post: Critical court documents (for example, a sealed copy of a Divorce Application) are usually served on the recipient by post/mail only if the recipient agrees in advance to receive them and sign and return the Acknowledgement of Service.
Less critical documents or those for which personal service is not mandated may be served by post. Check the court rules or consult a legal professional to confirm whether postal service is appropriate for your documents.
Procedure for Service by Post
Choosing the Correct Postal Method:
Use registered post or express post with tracking to ensure the delivery can be verified.
Include a prepaid/stamped and addressed envelope for the recipient to return the signed Acknowledgement of Service.
Addressing the Documents:
Address the documents to the recipient’s last known address or the address provided by the recipient.
If serving a company, address the documents to the company’s registered office.
Sending the Documents:
Ensure the documents are properly packaged and labelled.
Send the documents through the selected postal service, ensuring you obtain proof of posting.
Proof of Service:
Complete an Affidavit of Service By Post and attach the Acknowledgement of Services (signed and returned by the recipient) to your affidavit and file these documents with the court.
Timing and Deadlines:
Documents must be posted within the timeframes specified by the court rules or court orders. Factor in postal delivery times to ensure the recipient receives the documents by the required date.
Special Considerations
International Service:
When serving documents to a recipient outside Australia, additional rules may apply. Consult the court rules or seek legal advice for guidance on international service.
Recipient’s Acceptance:
If the recipient refuses to accept the postal delivery, the court may still consider the documents served if you have proof of attempted delivery. Alternatively, the court may allow an alternative method of service or dispense with the requirement of service (see below).
A party's Lawyer May Accept The Service of Documents
The party serving the court documents on another party may ask the recipient party's lawyer to accept the service of documents and sign the Acknowledgement of Service. The lawyer may or may not accept the documents (depending upon their client's instructions).
However, if the lawyer is willing to accept the service, then the party serving the documents do not need to file an Affidavit of Service with the court. Lawyer's signed Acknowledgement of Service is sufficient and acceptable evidence of service of documents.
Applying for Alternative Methods of Service
Service with Conditions: If you are unable to serve documents as required by court rules despite taking all reasonable steps, you can apply to the Court for an order, seeking:
Service on a Third Person: This permits you to serve court documents on someone else who the court believes will notify the person to be served, or
Service by Post: This allows you to serve documents by mail instead of in person.
Dispensation of Service: In exceptional circumstances, the court may dispense with the requirement for service altogether. This is only granted when all reasonable steps to serve the documents have been exhausted.
Legal Assistance
If you are unsure about the process or encounter difficulties in serving documents, it is advisable to seek legal advice. Lawyers can provide guidance on the correct procedures and ensure compliance with court requirements.
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