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Substituted service and dispensation of service

Information about how to apply for substituted service or dispensation of service orders.

Substituted service

The rules of service are very strict. If you can’t serve your Application for Divorce on your spouse, you must ask the Court for permission to:

  • serve them in a different way (substituted service), or
  • not serve them at all (dispensation of service). 

If you don’t serve your spouse, and you don’t apply for substituted or dispensation of service orders, the Court may adjourn or dismiss your application. 

If you can’t serve your spouse by hand or by post but are still able to contact them, you must ask the Court for permission to serve them by a different method. This may include serving them:

  • via Facebook or email
  • through a friend or relative of your spouse
  • by placing a notice in a newspaper, for example, the Daily Telegraph.

If the Court is not satisfied that you have taken all reasonable steps to find your spouse, it may adjourn your application and ask you to try again.   

If you are concerned about your residential address being disclosed to your spouse or are afraid to contact them, you should get legal advice.

Dispensation of service

If you don’t know where your spouse is and you have not been able to contact them, you must ask the Court to make an order dispensing with service. 

The Court will only make this order if it is satisfied you have made all reasonable attempts to contact and locate your spouse. This includes trying to contact them via email, social media, through friends and family, or their employer. 

If the Court thinks you have not made all reasonable attempts to contact and locate your spouse, it may adjourn your application and ask you to try again.

You will need strong evidence for the Court to dispense with service. You should consider substituted service first.

If the Court thinks there is a way you can serve your spouse, it may make Substituted Service Orders instead of Dispensation of Service Orders.

If you need help to apply for substituted service or dispensation of service orders, you should get legal advice.

  • Warning

    Warning

    Asking the Court for substituted or dispensation of service orders may delay your divorce application. 

Step by step guide - Applying for Substituted Service Orders

To apply for Substituted Service Orders, you must complete the following forms:

  • Affidavit
  • Application in a Proceeding.

You can download these forms from Family law forms on the Federal Circuit and Family Court of Australia website. 

You don’t need to download the Application in a Proceeding if you eFile and select the guided process through the Commonwealth Courts Portal.

Before you start your application, you should get all the documents you want to attach to your Affidavit. 

You should consider attaching documents that show your attempts at trying to contact and locate your spouse, including emails and text messages.

Before you complete your Application in a Proceeding, you must prepare your Affidavit. 

In your Affidavit you must include:

  1. an introduction
  2. details of how you have tried to contact and locate your spouse to serve them.

Your introduction must include:

  1. your date of birth and current age 
  2. where you were born, if outside of Australia
  3. your spouse’s date of birth and current age
  4. where your spouse was born, if outside of Australia
  5. the date you began living with your spouse
  6. the date of your marriage
  7. the date of your separation 
  8. details of any children of your marriage
  9. details of current arrangements for your children, including parenting plans or orders.

In the body of your Affidavit, you must explain all the steps you have taken to contact and locate your spouse, including:

  1. details of when you last spoke to or saw your spouse, and the circumstances surrounding that contact
  2. if your spouse lives overseas, details of where they are living, how long they have lived there, and when, they are coming back to Australia
  3. details of your attempts to find your spouse, including:
    - contact you have made with their close friends and family
    - contact you have made with their employer
    - searches you have undertaken. For example, the electoral roll, social media and email accounts
    - any notices you have posted in the newspaper
  4. your spouse’s last known address
  5. any reasons why your spouse can’t be contacted, for example, a history of homelessness or domestic violence
  6. the costs of trying to locate your spouse, including the financial difficulties you would experience paying those costs
  7. any other relevant information. 

You should annex any documents that show how you have attempted to contact your spouse, for example, emails or text messages.

Don’t sign your Affidavit until you are ready to have it witnessed. 

Step by step guide: Preparing your Affidavit 

Instructions: Instructions for completing an Affidavit - Substituted Service

Sample: Sample Affidavit - Substituted Service

Once you have prepared your Affidavit you must sign it and have it witnessed by an authorised person (Justice of the Peace or lawyer).

For more information about where to find a Justice of the Peace, see Finding a JP on the Department of Communities and Justice website.  

Completing your application online

To eFile your Application in a Proceeding online:

  1. log onto the Commonwealth Courts Portal
  2. open your divorce file by clicking on the file number
  3. go to ‘File a new application’
  4. select that you are filing on your own behalf
  5. read and confirm that you have understood the eFiling obligations
  6. select ‘Application in a Proceeding’
  7. select ‘Federal Circuit and Family Court of Australia’
  8. select ‘Guided’ as your preferred application process.
  9. enter a title for your application, for example, Application in a Proceeding
  10. enter a description of your application, for example, Substituted Service Orders
  11. click ‘Create’
  12. complete the questions in each part, saving and validating them as you go.
  13. upload your Affidavit 
  14. complete the Statement of Truth 
  15. click ‘Save’
  16. submit your application. 
Completing your application by hand

If you are completing your Application in a Proceeding by hand, you will need to include:

  1. the location of the registry, for example, Parramatta, Newcastle
  2. your full name and your spouse’s full name
  3. the orders you are seeking. 

You can file your completed Application in a Proceeding and Affidavit in person at a court registry. You will need to take two copies so that the court can keep one.  

To find a registry near you, see NSW on the Federal Circuit and Family Court of Australia website. 

Don’t file your original Application in a Proceeding and Affidavit - only file photocopies.

You can also eFile your application and Affidavit:

  1. Log onto the Commonwealth Courts Portal
  2. Open your divorce file by clicking on the file number
  3. Go to ‘File a new application’
  4. Select that you are filing on your own behalf
  5. Read and confirm that you have understood the eFiling obligations
  6. Select ‘Application in a Proceeding’
  7. Select ‘Federal Circuit and Family Court of Australia’
  8. Select ‘Unguided’ as your preferred application process
  9. Enter a title for your application, for example, Application in a Proceeding
  10. Enter a description of your application, for example, Substituted Service Orders
  11. Click ‘Create’
  12. Upload your documents including:
    - Your Application in a Proceeding
    - Your Affidavit 
  13. Click ‘Save'
  14. Submit your application. 

Instructions: Instructions for completing an Application in a Proceeding - Substituted Service

Sample: Sample Application in a Proceeding - Substituted Service

Once you have filed your Application in a Proceeding and Affidavit, you need to prepare for the hearing.

At the hearing, the court must decide whether you have made all reasonable attempts to serve your spouse with the Application for Divorce and supporting documents. 

If the court decides that you have, it will make Substituted Service Orders. You should make a note of these directions and comply with them. Your matter will be adjourned to a future date to allow you to serve your spouse. If the court decides that you have not made all reasonable attempts to contact your spouse, it may adjourn your application to a future date and ask you to try again. 

For more information, see Going to the hearing.

If the Court has granted you Substituted Service Orders, you should serve your spouse, as ordered by the Court, as soon as possible. 

If you don’t serve your spouse, your application may be adjourned (again) or dismissed.

After you have served your spouse, you must complete an Affidavit of Service (General). This is referred to as an Affidavit of Compliance in the Substituted Service Orders. This tells the court you have served your spouse in accordance with court orders. 

You can download an Affidavit of Service from the Federal Circuit and Family Court of Australia website. 

After you have completed an Affidavit of Service, you should attach any proof of compliance, and you must get it witnessed. 

Don’t sign your Affidavit until you are ready to have it witnessed.

Instructions: Instructions for completing an Affidavit of Service (General) – Substituted Service

Sample: Sample Affidavit of Service (General) – Substituted Service

If you don’t know how to complete the Affidavit, you should get legal advice.

Once your Affidavit of Service (General) has been witnessed, you must file it with the court. You can do this online or at a court registry. The court will usually specify dates for Affidavit to be filed.

Once you have filed your Affidavit for Service, you should prepare for the hearing. 

For more information, see Going to the Hearing.

Step by step guide- Apply for Dispensation of Service Orders

You will need to complete the following forms:

  • Affidavit
  • Application in a Proceeding.

You can download these forms from the  Family law forms page on the Federal Circuit and Family Court of Australia website. 

You don’t need to download the Application in a Proceeding if you eFile and select the guided process through the Commonwealth Courts Portal.

Before you start writing, you should get all the documents you want to attach to your Affidavit. 

You should consider attaching documents that show your attempts at trying to contact and locate your spouse, including emails and text messages. 

Before you complete your Application in a Proceeding, you must prepare your Affidavit. 

In your Affidavit you must include:

  1. an introduction
  2. details of how you have tried to contact and locate your spouse to serve them.

Your introduction must include:

  • your date of birth and current age 
  • where you were born, if outside of Australia
  • your spouse’s date of birth and current age
  • where your spouse was born, if outside of Australia
  • the date you began living with your spouse
  • the date of your marriage
  • the date of your separation 
  • details of any children of your marriage
  • where you lived right after separation, including where your children lived
  • details of current arrangements for your children, including parenting plans or orders.

In the body of your Affidavit, you must explain all the steps you have taken to contact and locate your spouse, including:

  1. details of when you last spoke to or saw your spouse, and the circumstances surrounding that contact
  2. if your spouse lives overseas, details of where they are living, how long they have lived there, and when, if at all, they are coming back to Australia
  3. details of any joint property you still have with your spouse, including bank accounts, businesses, houses and any dealings either of you have had with this property
  4. details of your attempts to find your spouse, including:
    - contact you have made with their close friends and family
    - contact you have made with their employer
    - searches you have undertaken, for example, the electoral roll, social media and email accounts
    - any notices you have posted in the newspaper
  5. your spouse’s last known address
  6. any reasons why your spouse cannot be contacted. For example, a history of homelessness or domestic violence
  7. the costs of trying to locate your spouse, including the financial difficulties you would experience paying those costs
  8. any other relevant information. 

You should annex any documents that show how you have attempted to contact your spouse, for example, emails or text messages. 

Don’t sign your Affidavit until you are ready to have it witnessed. 

Step by step guide:  Preparing your Affidavit 

Instructions: Instructions for completing an Affidavit - Dispensation of Service

Sample: Sample Affidavit - Dispensation of Service

Once you have prepared your Affidavit you must sign it and have it witnessed by an authorised person (Justice of the Peace or lawyer). 

For more information about where to find a Justice of the Peace, see Finding a JP on the Department of Communities and Justice website.  

Completing your application online

To eFile your application online:

  1. log onto the Commonwealth Courts Portal
  2. open your divorce file by clicking on the file number
  3. go to ‘File a new application’
  4. select that you are filing on your own behalf
  5. read and confirm that you have understood the eFiling obligations
  6. select ‘Application in a Proceeding’
  7. select ‘Federal Circuit and Family Court of Australia’
  8. select ‘Guided’ as your preferred application process.
  9. enter a title for your application, for example, Application in a Proceeding
  10. enter a description of your application, for example, Dispensation of Service Orders
  11. click ‘Create’
  12. complete the questions in each part, saving and validating them as you go
  13. upload your affidavit 
  14. complete the Statement of Truth 
  15. click ‘Save’
  16. submit your application. 
Completing your application by hand

If you are completing your Application in a Proceeding by hand, you will need to include:

  1. the location of the registry, for example, Parramatta, Newcastle
  2. your full name and your spouse’s full name
  3. the Orders you are seeking.

You can file your completed Application in a Proceeding and Affidavit in person at a court registry. You will need to take two copies.    

To find a registry near you, see Court locations on the Federal Circuit and Family Court of Australia website. 

You can also eFile your Application and Affidavit:

  1. log onto the Commonwealth Courts Portal
  2. open your divorce file by clicking on the file number
  3. go to ‘File a new application’
  4. select that you are filing on your own behalf
  5. read and confirm that you have understood the eFiling obligations
  6. select ‘Application in a Proceeding’
  7. select ‘Federal Circuit and Family Court of Australia’
  8. select ‘Unguided’ as your preferred application process
  9. enter a title for your application, for example, Application in a Proceeding
  10. enter a description of your application, for example, Dispensation of Service Orders
  11. click ‘Create’
  12. upload your documents including:
    - Your Application in a Proceeding
    - Your Affidavit 
  13. click ‘Save'
  14. submit your Application. 

Instructions: Instructions for completing an Application in a Proceeding - Dispensation of Service

Sample: Sample Application in a Proceeding - Dispensation of Service

If you don’t know how to complete the Affidavit, you should get legal advice.

Once you have filed your Application in a Proceeding and Affidavit, you need to prepare for the hearing.

At the hearing, the court must decide whether you have made all reasonable attempts to serve your spouse with the Application for Divorce. 

If the court decides that you have, it will make orders to dispense with service. If this occurs, the court will then consider your divorce application.  

If the court decides that you have not made all reasonable attempts to contact your spouse, it may adjourn your application to a later date and ask you to try to serve them again. You should make a note of any directions given by the court and comply with them.

For more information, see Going to the hearing.