How can I serve the documents?
Different types of court documents need to be served in different ways. Select the document type for specific details:
Applications that start a proceeding include; initiating application, contravention, contempt and enforcement hearing.
An application starting a proceeding must be served by personal service by a person who is not a party to the proceedings and who is over the age of 18 years. For example, the application may be served by the party’s lawyer, a process server, or another person who is not a party to the proceeding.
Personal service means, the server must give a copy of the documents to the person to be served. You may arrange for a process server (for a fee). To find a professional process server, search for ‘process server near me’ with your preferred internet search engine.
Which documents must be served?
- Initiating application
- Genuine steps certificate
- Affidavit, if filed
- A copy of any family violence order affecting the parties
- Marriage, families and separation brochure
- If parenting orders are sought:
- If financial orders are sought:
- Financial statement - if the Applicant is aware that the Financial statement will not make full and frank disclosure they must also file an affidavit providing further particulars
- Financial questionnaire
- Undertaking as to disclosure should be filed with the application, but must be filed prior to the first court date.
What does the person serving the documents have to do?
The person serving the document must identify the person being served and provide a copy of the document to the person served. If the person to be served refuses to take a copy of the document, the person serving it may put it down in the presence of the person to be served and tell the person what it is.
The court requires proof of service by the first court event. If you are unable to serve the documents see Cannot serve the court documents. If service is effected late (ie. within seven days prior to the court event or three days if it is an application in a case), service documents must still be filed with the court. Any issues in relation to the late service of documents, if raised, will be dealt with at the court event.
You can also serve an application on the respondent's or other parties' lawyer if they are willing to accept service.
Excluding applications starting proceedings and subpoenas requiring the attendance of a person, all other court documents including responses and supplementary documents can be served by ordinary service.
If the person to be served has an address for service noted on the application, you can serve them by:
- Delivering it to the address in a sealed envelope addressed to the person or posting the documents in a sealed envelope to the address for service.
- By email if they have provided an email at the address for service on the application.
- Or by personal service (by a person who is not a party to the proceedings and who is over the age of 18 years) as outlined in Application starting a proceeding.
If the person to be served does not have an address for service you can deliver or post the documents in a sealed envelope to their last known address or place of business, or send the documents to their last known email address.
Note: If there are no current proceedings then an Application in a proceeding must be served by hand. See Application starting a proceeding above.
The Court requires proof of service. See What happens after the documents have been served? below.
There are three different types of subpoena:
- a subpoena for production
- a subpoena to give evidence (requires attendance at court), and
- a subpoena for production and to give evidence.
The rules for service are different for each type of subpoena. If the subpoena is not served correctly (or conduct money is not provided when required) the named person does not have to comply with the subpoena.
See Subpoena: Information for a person requesting the issue of a subpoena for information about subpoena service and requirements for conduct money.
Special service on a person with a disability
The document must be served:
- on the person’s case guardian
- on the person’s guardian appointed under a State or Territory law, or
- if there is no one under paragraph (a) or (b) – on an adult who has the care of the person.
Note: the person in charge of a hospital, nursing home or other care facility is taken to have the care of a person who is a patient in the hospital, nursing home or facility.
Special service on a prisoner
The document must be served on the person in charge of the prison.
If the respondent is not in Australia the method of service will depend on whether the country is a party to the Hague Convention. See the Attorney-General's Department website for information about serving legal documents across international borders.
If the country is a party to the Hague Convention, service may be possible by arrangement with the Attorney-General's Department. If the country is not a party to the Hague Convention, you should obtain legal advice in relation to filing an application to dispense with service or substituted service. See Cannot serve the court documents below for more information.
If you are unable to effect service in a way required by the court rules, even after you have taken all reasonable steps to, you can apply to the Court for an order for:
- service with conditions (which allows you to serve court documents on a third person who the court is satisfied will bring the court documents to the attention of the person to be served; or allows you to serve by post rather than service by hand);
- dispensation of service (which allows the court to dispense with the requirement of service) - please note dispensation of service will only be granted in exceptional circumstances.
You will need to take all reasonable steps to serve the documents and refer to these steps in an affidavit supporting your application. If you need help to complete this type of application or are unsure whether you are eligible to file this application you should obtain legal advice. A lawyer can help you understand your rights and responsibilities before you apply.
To apply for an order seeking to dispense with service or for substituted service, you can seek the orders within the application or file an application in a proceeding with a supporting affidavit setting out why the court should make the service order.
How do I file an application in a proceeding seeking an order for service with conditions or to dispense with service?
You must file an Application in a proceeding. There are two options when eFiling an Application in a proceeding:
Guided – uses the online interactive application form together with uploading supporting documents
Unguided – complete an online form and upload the application and supporting documents.
If you are not registered on the Commonwealth Courts Portal or are registered but do not have access to your file electronically email us at email@example.com with your full name, date of birth, name of the other party, file number (if known) and your portal user name if you are already registered so we can create your registration or provide access to your file. Once you are registered or linked go to step 1.
- Select your file number from the Available Files tab.
- Select File a New Application.
- Confirm you are filing on your own behalf and that you have read obligations.
- Select Application in a Proceeding then select Continue.
- Choose the Guided or Unguided option – see information above.
- Enter a Title and a Description then select Create.
- Complete Step 1, Part A, B and C - on completion each Part should show a green tick.
- Complete the Affidavit form, scan and save the document on your computer drive as a PDF where you will be able to find it easily.
- Upload the affidavit at Step 2. You can file any further affidavits as an additional document.
- Complete Step 3. Statement of Truth and Save.
- Submit the application. You can open a preview of the document before you print.
If for any reason you cannot eFile the application, follow the instructions on the Application in a proceeding and file it together with the supporting Affidavit the original plus a copy at a court registry.
An Application in a proceeding requires the manual allocation of a court date which will be processed within 3 working days. You can log into the portal to check the allocated date at any time. You can also select the envelope button (see above) to be notified by email of any activity on your file.
There is no court fee associated with filing an application in a proceeding seeking an order for substituted service or to dispense with service.
What happens after the documents have been served?
The person who served the document/s must complete an Affidavit of service and have it sworn or affirmed before a person authorised to witness the swearing of affidavits e.g. a lawyer or a JP.
If served by personal service the server must include any information or attach any documents to the Affidavit of service which helped then identify the respondent. If the server identified the respondent with a photograph, you should also prepare a further brief affidavit stating that the person in the photograph is the respondent. The service documents must then be filed with the court.
Filing the affidavit of service
How do I eFile the service documents?
1. Scan the completed form and save the document on your computer where you will be able to find it easily.
2. If you have not registered on the portal or you are registered but do not have access to your file electronically email firstname.lastname@example.org with your file number, full name, date of birth and the name of the other party. Once you are registered or have access to your file go to step 3. If you are already registered and linked to your divorce file go to step 3.
3. Select the file number from the Available Files tab.
4. Select + next to the Application.
5. Select Add document.
6. From the Document Type drop down menu select Affidavit of service.
7. Select your name as the person filing the document.
8. Click on Choose File and search for the document saved on your computer. The document must be in a PDF format.
9. Click on Upload.
- If you are attending the court hearing, take your copy of the service forms with you.
- You are not required to serve the Affidavit of service.