Serving legal documents in an Australian family law case is essential to ensure all parties are properly notified, but when one party resides overseas, the process becomes more complex. This article explores the necessary steps and key considerations for serving someone overseas in compliance with the Federal Circuit and Family Court of Australia.

Understanding Serving Someone

In Australia, any application or document filed with the Federal Circuit and Family Court of Australia (“the Court”) must be served on all the parties to the proceedings – unless the Court says otherwise. This is to ensure the other party is properly notified of legal proceedings. “Serving” someone usually involves giving or delivering court documents “personally” i.e., by handing someone the documents in person. Proof of this service must then be filed with the Court. There are different rules for serving certain documents such as Divorce ApplicationsServing legal documents to someone residing overseas can be a complex process.

Personal Service in Australia

If the person to be served is in Australia, personal service involves simply giving a copy of the documents to the other person to be served: Rule 2.35 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”). If the other person does not take the document, the person serving may put the documents down in the presence of the other person and tell them what the documents are.

NB: You, as the Applicant in the proceedings, must not be the person to serve the document, however you may be present when personal service occurs.

Personal Service Overseas

New Zealand

If the other party resides in New Zealand, service is to be affected in accordance with the Trans-Tasman Proceedings Act 2010 and Division 1.2.3 of the Rules: see rule 2.48 of the Rules.

Anywhere else overseas

Serving someone overseas depends on whether the country in which the other person resides is a party to the Hague Service Convention (“the Convention”). The Convention is an international treaty that simplifies and standardizes the process of serving legal documents across national borders. It was introduced to streamline service rather than having to go through complex diplomatic channels.

As at September 2024, there are 84 contracting parties to the Convention. Updated details regarding which are countries are parties to the Convention can be found on Hague Conference website.

What Steps Should I Take to Serve Someone in a Family Law Matter?

Step 1: Determine the Respondent’s Location

Before initiating the service process, you should ideally have a current and accurate address for the other person. This may involve contacting friends or family members, hiring a private investigator or utilising social media or online searches.

Step 2: Check for International Agreements

Australia has agreements with some countries that simplify the process of serving legal documents. Check if the country where the respondent resides is a signatory to:

  • The Hague Service Convention; or
  • Bilateral treaties on judicial assistance

If such agreements exist, follow the procedures outlined in these treaties.

Parties to the Convention have the details of each country’s methods of service and other requirements on the Convention website. For example, methods of service under the Convention in the United Kingdom is outlined as “[p]ersonal service on individuals and postal service on registered offices of companies. If this fails by first class post.”

Step 3: Translate Documents (If Necessary)

If the other person resides in a non-English speaking country, you may need to have the documents translated into the local language.

Reg 21AF of the Family Law Regulations 1984 (“the Regulations”) states that “if, under Article 5 of the Convention, the Central Authority or any additional authority of the country to which the request is addressed requires the document to be served to be written in, or translated into, an official language of that country, a translation into that language or 1 of the official languages of both the document to be served and the summary of the document to be served.”

In Australia, a certified translator should be NAATI-accredited.

Step 4: File Documents

Collate and file your application and supporting documents with the Court to obtain sealed copies ready for service, including:

  • The main legal documents (e.g., Initiating Application)
  • Any supporting affidavits or exhibits
  • Translated versions (if applicable)
  • A letter explaining the purpose of the documents and any required actions

Step 6: Initiate the Service Process

Once the documents have been filed with the Court, a request should be made to the Registry Manager to have a Registrar of the Court make a request for service to the relevant country. This request to the Registry Manager must be accompanied by three (3) copies of the following documents (see reg 21AF(2)-(3) of the Regulations):

(a) a draft request for service abroad (being ‘Form 1A—Request for service abroad of judicial documents and certificate’ found on the Court website);
(b) the sealed Court document(s) to be served; and
(c) a summary of the document to be served (being ‘Form 1B—Summary of the document to be served’ found on the Court website).

The request to the Registry Manager must also include a written undertaking to the court, signed by the applicant or their legal practitioner, that they agree to be personally liable for all costs that are incurred for service overseas and to pay the amount of those costs to the relevant Registrar within 28 days after receipt: reg 21AF(3) of the Regulations.

Step 7: Obtain Proof of Service

It’s crucial to obtain evidence that the documents were successfully served. Once the Court Registrar has confirmation from the Central Authority of the overseas country that service was effected, this should be filed on the Court Portal.

Other forms and substituted Service

A party can still be considered served if a person’s lawyer accepts service: rule 2.36 of the Rules.

The Court still has discretion to allow substituted service, including service via email in certain circumstances: rules 2.33 and 2.34 of the Rules.

Challenges and Considerations

Time: International service can take several weeks or even months.

Cost: Overseas service is often more expensive than domestic service.

How We Can Assist You With Serving Legal Document Overseas

If you’re facing the challenge of serving legal documents overseas in an Australian family law case, it’s essential to ensure the process is handled correctly to avoid delays or complications. At Ramsden Family Law, our experienced team understands the complexities involved in international service and can guide you through every step. Don’t navigate this process alone. Contact Ramsden Family Law today to discuss your case and ensure your legal documents are served in compliance with all international and Australian regulations.

Written by Avalon Carnall

Posted in: Latest News

September 17 2024