The Law Handbook 2024

Chapter 4.1: Marriage and divorce 259 Service of documents It is a requirement of the court that all proceedings issued from the court by the applicant must be formally brought to the notice of the other party to the proceedings. The court must be satisfied that any other relevant party to the proceedings has been formally ‘served’ with notice of the proceedings. ‘Service of court documents’ is a legal term meaning they have been ‘officially and formally brought to the attention of the other party’. For the applicant to prove that he or she has properly effected service on the other party, it is necessary to lodge documents of proof of service with the court. Any court is most reluctant to make any order whatsoever affecting the rights of another without that party being present in court. However, if the applicant can prove to the court that any other relevant party to the proceedings has been served with notice of the proceedings, and if that party is not present at court on the hearing date, the court then may proceed to hear the case and make orders in the absence of any other party. An application for dissolution or nullity must be served on the respondent. This is done by serving a sealed copy of the application on the respondent either personally or by post. If serving by post, a form for acknowledging service of the application, and a stamped envelope addressed to the applicant or the applicant’s solicitor, must be delivered. A document describing the legal and possible social effects of divorce must also be delivered. An affidavit of service is generally then completed by the person who served the documents. Anybody except the applicant can serve the documents in person. Anybody including the applicant may, however, serve them by post. When service is personal, oral or affidavit evidence can be given to identify the signature on the acknowledgment of service. When a person refuses to sign an acknowledgment of service, evidence can be given by producing a photograph and verifying that the photograph is of the person served. When service is by post, the respondent is requested to return a form acknowledging service and giving an address for service of future documents. In practice, personal service on respondents is preferable to attempting service by post, as there is more likelihood that service will be effected and the all-important service documents will be properly completed and available to prove service at the court hearing. Once service has been completed, the service documents may be either filed at the court prior to the hearing or handed up to the court on the day of the hearing. Service may be dispensed with when the court thinks it is necessary or expedient to do so. This applies where the applicant has taken every reasonable step to find the respondent. What happens at court? 1 All proceedings at FCFCOA are heard in open court. However, the court can order specific people to not be present in court. Proceedings are fairly informal and the court tries to ensure that they are not protracted. NOTE The media may report family law cases, but it is an offence to identify a party to the proceedings, a witness, or a person associated with the proceeding. There are wide definitions of anything that may identify a person (e.g. style of dress or occupation) (s 121). The penalty for this is imprisonment for up to one year. 2 Spouses can be forced to be witnesses, and they are required to disclose communications made between them during the marriage. 3 The court can forbid questions that are offensive, scandalous, insulting or humiliating unless it is satisfied that in the interests of justice the question should be answered. 4 Proof of service may be given by affidavit or oral evidence. 5 A subpoena (i.e. a summons to appear to give evidence and/or produce documents) may be used to compel a witness to attend court. 6 A person summonsed is required to attend the hearing unless excused by the court, and to produce whatever documents etc. as directed by the summons. The court can issue a warrant if the person does not attend. Non-compliance may result in an order for costs caused by the failure to comply, as well as a broad range of other penalties available to be imposed by the court. A subpoena requiring the production of documents must be served seven clear days prior to the hearing. All subpoenas must be served personally, and conduct (fare) money must be provided.