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  • Dimitri Kagioulis

I want a divorce! But my ex won't accept the paperwork

Updated: Apr 27, 2022

You may be familiar with the line in police and legal dramas where documents are handed over saying, “you have been served.”

In a Family Court context, the first time documents are served in a particular matter must be by the default method of “Special Service” – this is service where you prove to the Court that the documents have been received by the other party, before the matter can proceed.

Service of Court documents is an essential, if sometimes frustrating, part of the process of beginning Court proceedings. It is essential, because the Court must be confident that the other party to proceedings is aware that the Court proceedings exist, so they have an opportunity to respond.

This is typically done by an “Affidavit of Service” and either an accompanying “Acknowledgement of Service” and “Affidavit Proving Signature,” or the Service Agent swearing that they positively identified the person, such as by photograph, before leaving the documents for them. So far so good – these are provided in the Family Court “Service Kit” with instructions.

In an application for Divorce, for example, either person can apply for divorce, even if their spouse wants to stay married. The other person can’t refuse to be divorced – either person can end the marriage, but the objecting party might attempt to avoid service of the documents, to avoid getting divorced, or simply to be frustrating. This might be in the form of refusing to reply to emails, refusing to identify themselves or come to the door. Sometimes it involves barricading themselves in their home, behind high fences.

This calls for what is known as “Substituted Service,” or “Dispensing with Service” Substituted Service

In the Family Court context, this is where an application for substituted service comes in. If a person won’t accept service, you can apply to the Court to ask that service via an alternate method be “deemed” to be effective. The rules about service are located at Chapter 7 of the Family Law Rules. In particular, rule 7.18: FAMILY LAW RULES 2004 – RULE 7.18 Service with conditions or dispensing with service (1) A party who is unable to serve a document may apply, without notice, for an order: (a) to serve the document in another way; or (b) to dispense with service of the document, with or without conditions. (2) The factors the court may have regard to when considering an application under subrule (1) include: (a) the proposed method of bringing the document to the attention of the person to be served; (b) whether all reasonable steps have been taken to serve the document or bring it to the notice of the person to be served; (c) whether the person to be served could reasonably become aware of the existence and nature of the document by advertisement or another form of communication that is reasonably available; (d) the likely cost of service; and (e) the nature of the case. (3) If the court orders that service of a document is: (a) dispensed with unconditionally; or (b) dispensed with on a condition that is complied with; the document is taken to have been served. Note: An application under this rule is made by filing an Application in a Case and an affidavit (see rules 5.01 and 5.02). The most common way to accomplish substituted service is via an email address. However, to do this, you must address the factors at Rule 7.18 (2) to the Court, via an accompanying affidavit statement. In an email example, this could potentially be demonstrated with the following evidence:

1. A statement regarding the email address of the other party

2. Other attempts at service or why other methods were not attempted, for example:

  1. The cost of service – perhaps exorbitant to serve documents in another country and have an affidavit sworn in English

  2. Evidence of unsuccessful attempts at skip-tracing

  3. A statement that their address is unknown

3. Evidence of historical use of the email address, that demonstrates that the person using the address is the relevant person

4. Evidence of recent use of the email address, which will show the Court that emails sent recently will likely be seen by the recipient.

If email is impossible, it might be time to consider alternative approaches; such as:

  • Newspaper advertisements;

  • Private investigators; or even

  • Getting in contact via mutual acquaintances.

Ultimately, a decision regarding whether a particular method of substituted or dispensed service is at the discretion of the Court, so putting the best evidence before the Court to show that service has been affected is essential. If you would like assistance with a substituted service application, Carter Dickens Lawyers is experienced with these, and all manner of Family Court applications. Please note the above is general in nature and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific facts of your legal matter.

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