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29 April 2016

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Family Law
Federal

Asked

My client's divorce application has a return date but the respondent can't be located.

He left Australia 18 months ago and returned to his native country and can no longer be found at the address that he had provided. All inquiries have been fruitless. What can I do regarding the need for service?

Answered

Thank you for your question.

The following is an extract from the commentary in our Divorce guide:

Substituted service and dispensation of service

If all reasonable attempts have been made to effect service, the respondent is actively avoiding service, or the respondent’s whereabouts cannot be ascertained, then rule 6.14 Federal Circuit Court Rules provides an application to the court may be made for an order dispensing with service or substituting another way of serving the document.

The application is filed as an Application in a Case and must be supported by affidavit setting out the steps taken to locate and/or serve the respondent.

Under rule 6.15 Federal Circuit Court Rules in considering the application the court may have regard to:

(a) whether reasonable steps have been taken to attempt to serve the document; and
(aa) whether it is likely that the steps that have been taken have brought the existence and nature of the document to the attention of the person to be served; and
(b) whether the person to be served could become aware of the existence and nature of the document by means of advertising or another means of communication that is reasonably available; and
(c) the likely cost to the party serving the document, the means of that party and the nature of the proceedings; and
(d) any other relevant matter.

The applicant may be required to give oral evidence in support of the application, and should attend the hearing even if they have elected not to attend on the application for divorce. The application is usually listed on the same day and time as the divorce hearing.

The court may order that service of a document is dispensed with unconditionally, or dispensed with on a condition such as the applicant place a notice in a local or state newspaper detailing the application for divorce and where further information can be obtained.

When drafting an Application in a Case, it is practical to seek a hearing in the absence of parties pursuant to rule 3.09 Family Law Rules to allow for the final hearing of the application for divorce to be determined in the absence of the respondent.

An example Application in a Case for Substituted Service together with an example Affidavit in Support of the Application in a Case for Substituted Service can be found in the guide.

Regards

Mentor