International family law matters are becoming increasingly common in the Federal Circuit and Family Court of Australia. This includes disputes in relation to a child’s relocation to another country, or where one party may be living overseas or one or both parties may have assets held overseas. This carries with it complexities as Courts require proper service of documents on the addressee which may be difficult depending on the country.
International service of documents is pursuant to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965 and the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 1970 (‘the Hague Service and Evidence Conventions’). There are also certain bilateral treaties with some countries.
It is worth noting that simply being a signatory to a treaty or Hague convention does not give effect to law in Australia until it is codified in legislation. International service and enforceability of the Hague Service and Evidence Conventions will vary based on the Court’s rules and regulations as well as the country to which a Court document is to be served. As a result, the service requirements for a Court document to a person or organisation outside Australia is complicated, varying depending on the jurisdiction.
The Hague Service and Evidence Conventions specifies the obligations with which outgoing requests for civil legal documents must comply for contracting States. Australia is a contracting State and has established a legislative framework to comply with its obligations. For family law proceedings, the framework is contained in the Family Law Regulations 1984 (Cth) (‘the Regulations’).
The method of service is dependent on whether the country in which the person resides upon which the Court document is served (the requested country) is a party to the Service Convention. If the requested country is a party to the treaty (a Convention country), the international service of the Court document is covered by Part IIAB of the Regulations. Notably, an applicant may request a Court document be issued to a person in a country that is not a party to the Hague Service and Evidence Conventions, however the requirements are highly complex and specific legal advice should be sought.
Service requirements are simpler if the other country is New Zealand, in which case the Trans-Tasman Proceedings Act 2010 (Cth) applies. Issuing proceedings and serving documents in relation to a party located in New Zealand do not require special permission from the Court.
The process for the Hague Service and Evidence Conventions
Pursuant to reg 21AF, a person may apply to the relevant Court Registrar (broadly, a qualified lawyer who assists with the operation and administration of the Court – they have power to hear certain matters) for a request for service of a Court document in a Convention country. To do so, the application must have three copies of the following documents:
- A draft request of service abroad
- The document to be served
- A summary of the document to be served
- A translation of the document and a summary into the language required by the requested country (if applicable).
The legal practitioner for the applicant must also sign a written undertaking (broadly, a promise) to be liable for the costs incurred, and to provide security for the costs as required by the relevant Registrar.
The Registrar must be satisfied that the application is compliant with reg 21AF prior to authorising the request for service abroad. If the application is authorised, copies of the request for service will be forwarded to the applicant and the Central Authority in the requested country. The Central Authority is the government agency empowered to deal with these requests. In Australia, the Central Authority is the Private International and Commercial Law Section within the Attorney-General’s Department.
The Registrar will then receive a certificate of service from the Central Authority of the requested country, upon which they arrange for a copy to be sent to the applicant’s legal practitioner in accordance with reg 21AH. The Registrar will also receive a statement of costs, which they send to the legal practitioner who gave the undertaking to pay. The costs must then be paid within 28 days. Failure to pay the costs within the timeframe will mean that no further steps in the proceedings to which the court document relates to will occur until the costs are paid.
The Requesting Authority in Australia must also comply with declarations, reservations or notifications made by the requested country, relating to the Hague Service and Evidence Conventions. However, it is worth noting that the Court is generally reluctant to grant leave to serve a subpoena overseas when it cannot be enforced.
Each signatory to this Hague Service and Evidence Conventions has their own legal requirements, and these requirements become more complex where the foreign nation is not a signatory. It is important for the applicant’s legal practitioner to be aware of the processes in the requested country. The Hague Convention website provides useful information regarding each country’s processes for a variety of treaties, including the Service Convention.
We recommend receiving tailored legal advice if you are contemplating, have commenced or are responding to international family law matters. Our office is experienced in International Family Law. Call our office at 03 9670 4122 to arrange an initial consultation to discuss your matter.