It has long been an established tenet of procedural fairness in law that a person is entitled to know about, and be afforded an opportunity to answer, a charge/allegation/claim being made against them. There are exceptions to that rule, of course. For example, picture this: one parent in a strained and volatile relationship emails the other parent saying “I’m taking the kids overseas tomorrow and you’ll never see them again.” In the eyes of the Court, combating against the risk of harm to those children (by making urgent location, recovery and/or airport watch list orders on an ex parte basis) would take precedence over any argument of having to afford procedural fairness to the parent about to flee with the children.
The process of ‘serving’ a litigant in family law proceedings is covered in Chapter 7 of the Family Law Rules 2004 (“FLR”) and Chapter 1 of the Federal Magistrates Court Rules 2001 (“FMCR”). Almost always, service will be effected by a process server who personally hands the document to the person being served or, if that person is legally represented, a document will be posted, delivered, faxed or emailed to that person’s legal representative, if agreement in writing is received to that effect.
But what do you do when you do not know where the person is that you need to serve, and you have exhausted your attempts to find them?
I recently had a case where I was required to serve a child’s father in relation to parenting arrangements. No address, no number, no known location other than he resided overseas. One Facebook search later, however, and my client identified the father from his profile picture, distinctive full name and listed information.
We made an application and were successful in obtaining an order for ‘substituted service’, pursuant to Rule 6.14 of the FMCR, to serve the father via Facebook, not once, but three times. The Court was satisfied the documents had been brought to the father’s attention and the child had orders made in their best interests that afforded them stability in their life. Mission accomplished.
Social networking sites and the expansive (and revealing) nature of the internet in general has never been more relevant to litigants trying to prosecute their Family Law case, not just in relation to parenting matters. If you leave yourself open to being found, chances are, you will be, and if so, be warned: your inbox might not only contain the latest jokes and party invitations from friends.
Indeed, how times they are a changing; yes, even in the seemingly archaic gown and wig-wearing world that is the legal profession.