What is a process server?
A Process Server (sometimes referred to as a Mercantile Agent or Field Agent) is a person who may personally serve Court documents and any other documents on other individuals or corporations. To become a Process Server, you must obtain the appropriate license from the State in which you wish to serve Court documents. This process includes relevant criminal history and identity checks.
A Process Server often does more than just serving documents; our agents have previously conducted field calls whereby our agents attend at a given address and make inquiries to confirm whether or not a particular individual resides at the address. Further, agents with relevant security licenses often carry out personal security work for our clients.
What is an affidavit?
An affidavit is a written statement which gives evidence. An affidavit is essentially a written version of oral testimony that may be given at hearing or trial in Court. An affidavit must be sworn or affirmed by the person providing the affidavit (known as the ‘deponent’) and witnessed by (signed in the presence of) a qualified witness, such as a Justice of the Peace or a Solicitor.
Our agents provide our clients with either an affidavit of our agents attempts to serve the recipient of our clients’ documents, where our agents describe their efforts to serve recipients, including relevant observations made about the address attended, any relevant things said or done by the recipient etc.
If documents are successfully served by our agents, our agents’ sworn affidavits of service are considered by the Courts as evidence that the recipient was served with the documents.
If our agents are unable to serve documents on a recipient, our agents’ affidavits of attempted service can be used as supporting evidence of the efforts made to serve a person with documents, or perhaps evidence that a person may no longer be residing at a particular address, and can be used to support any application for substituted service made by our clients.
What is substituted service?
Substituted service is an order from the Court that may be sought by a party so that Court documents may be served on another party by a means other than the prescribed means of service.
For example, the usual prescribed method of service of a Federal Circuit Court Application for Divorce is by way of personal service on the respondent (ie. a process server physically handing a copy of the Application to the respondent). If, for example, the applicant attempts to serve the respondent at the respondent’s last known residential address, the server is informed at the last known address that the respondent no longer resides at the address and the applicant does not know any other address for the respondent, the applicant may apply for an order for substituted service that the respondent be served by some other means of service as the applicant is unable to personally serve the respondent.
Other methods of service that you may ask for in an application for substituted service may include service my email, post, fax, text message and/or Facebook message. To be successful in obtaining an order for substituted service, the applicant must provide the Court with good evidence that the documents will be brought to the respondent’s attention by the method of service. For example, being able to show recent emails or text messages from the respondent to provide evidence that the email address or phone number is the respondent’s current email address or phone number.
What happens if my ex-partner does not accept service of divorce documents?
We often have clients who are worried that their ex-partner will not accept service of divorce documents. Do not worry. To effectively serve divorce documents, the server must identify the recipient (such as by asking “Are you [name of the recipient]” and the recipient responding “yes”) and either hand the documents to the recipient or, if the recipient refuses to accept the documents, putting the documents down on the ground in the presence of the recipient and telling the recipient what the documents are. The server will then complete the Affidavit of Service advising how service was effected i.e. by handing the documents to the recipient of placing them down on the ground in front of the recipient.
What happens if I cannot personally serve divorce documents?
If you have taken all reasonable steps to attempt service of divorce documents (or any other Family Court document) in accordance with the Family Law Rules 2004 (Cth) and you are unable to serve the documents, you may make an application to the Court for substituted service. This means that you may apply to the Court for an order that the documents be served in some other way which will satisfy the Court that the documents will be brought to the person’s attention, such as by email, fax, post or text message. Pursuant to rule 6.15 of the Federal Circuit Court Rules 2001 (Cth), when making an order for substituted service, the Court may have regard to:
- Whether reasonable steps have been taken to attempt to serve the document.
- 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.
- 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.
- The likely cost to the party serving the document, the means of that party and the nature of the proceedings.
- Any other relevant matter.
To be successful in an application for substituted service, you need to show the Court that you have taken all reasonable steps to personally serve the documents (and have been unsuccessful) and that another method of service (such as email, fax, text message, social media etc.) will bring the documents to the attention of the recipient. To do this, you must show the Court evidence that the recipient uses those methods of communication currently, or at least recently. This evidence can be things such as recent emails, calls or messages from the recipient.