Substituted Service and Dispensing with Service
If you have made all reasonable attempts to effect service but the other party is either deliberately avoiding service, or their whereabouts are not known, you can make an application to the court for an order to either:
Allow Substituted Service, which lets you to serve the court documents on a third party who would bring the court documents to the attention of the person to be served; or
Dispense with the requirement of service, which allows you to proceed without having served the documents at all. Although this order is only ever granted in rare circumstances
Under rule 6.15 of the Federal Circuit Court Rules in considering such application the court may have regard to:
whether reasonable steps have been taken to attempt to serve the document; and
whether the steps taken have brought the document to the attention of the person to be served; and
whether the other party could become aware of document by advertising or another means of communication (such as social media) that is reasonably available; and
the likely cost to the party serving the document, the means of that party and the nature of the proceedings; and
any other relevant matter.
To demonstrate that you have taken reasonable steps to in attempting the service, you can undertake the following inquiries:
Telephone your ex-partner and tell them of your application and ask of their residence.
Telephone your ex-partner’s family and friends, tell them of your application and ask for their whereabouts.
Follow up with your ex-partner’s last known employer or solicitor, asking for a forwarding address.
Place advertisements in newspapers.
Engage a process server to serve the document, who would provide you with an affidavit of attempting the service.
You will need to draft an affidavit that highlights the steps you have undertaken to serve the document along with your application.
Key Takeaways
If you are unable to serve court documents to the other party in legal proceedings, you can make an application to the court for an order to allow substituted service or to dispense with the requirement for service.
The court will consider whether reasonable steps have been taken to attempt service, and you can undertake inquiries such as contacting the other party, their family and friends, and their employer or solicitor, placing advertisements, or engaging a process server.
You will need to provide an affidavit that highlights the steps you have taken to serve the document along with your application.
