A Divorce Application has been filed and you have been listed before a Judicial Registrar or Deputy Registrar for a Divorce Hearing. What do you need to do to ensure that the Application can proceed at the Divorce Hearing?
In the event you have filed a joint Application for Divorce, there is no requirement for you to serve the Application upon the other party.
If you have filed a sole Application for Divorce, you will need to ensure that you have affected service no less than 28 days prior to the Divorce Hearing. This is to ensure that the Respondent is aware of the Application and has an opportunity to respond should they choose to do so.
A failure to serve an Application for Divorce in accordance with the Federal Circuit and Family Court Rules 2021 may result in the Divorce Hearing being adjourned to a later date.
What documents need to be served?
The following documents will need to be served on the Respondent:
1. The sealed Application for Divorce and supporting documents;
2. The Marriage, Families and Separation brochure published by the Court; and
3. An Acknowledgement of Service (Divorce).
How do I serve the documents?
In accordance with the Federal Circuit and Family Court Rules 2021 service of an Application for Divorce can be affected in two ways; (1) by hand / personal service (i.e. a process server) or (2) by post. You cannot serve it on the other party yourself.
In the event you choose to serve the Application for Divorce by post, you will need to provide the Respondent with a pre-addressed return envelope to your address for service, and if the Respondent is in Australia, the correct postage for the envelope to be returned to you.
Once you have affected service, and prior to the Divorce Hearing, you will need to arrange for the relevant Affidavit of Service to be filed with the Court, proving you have done so. In the event service of the Application for Divorce was affected by a person who does not know the Respondent (i.e. a process server), the Applicant will also need to file an Affidavit Proving Signature prior to the Divorce Hearing.
What if I was unable to serve the Application?
If you have been unsuccessful in serving the Application for Divorce despite your attempts, you may need to make a separate Application to the Court and seek Orders dispensing with the requirements for service, or an order that provides for the documents to be served in another way (i.e. via email). Your application will need to be supported by an Affidavit setting out the steps you have taken to try to serve the other party.
It is important that all necessary steps are taken to comply with the service requirements of an Application for Divorce. A failure to do so may result in the Application being delayed, or in some instances, it may be dismissed.
The service requirements for an Application for Divorce have changed since the Federal Circuit and Family Court Rules 2021 commenced on 1 September 2021. If you are unsure how to serve an Application for Divorce, or the Application itself you should seek advice from a specialist family law solicitor.
As specialist family lawyers, we at Robinson + McGuinness will be able to advise you and act for you in relation to your Application for Divorce. We offer fixed fees in relation Divorce Applications. We can also act for you in the event an appearance is required by you or on your behalf at Court.
If you would like advice in relation to your family law matter, contact our office on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online to make an appointment with one of our experienced family lawyers.
Author: Peta Sutton