Keywords: Family law; parenting; parenting orders; service of documents; substituted service; service via social media; service via Facebook.
As a result of the recent Family Court decision in Maguire & Klein  FamCA 874 (5 October 2016), you don’t even have to know where your former spouse or de facto is in order to serve necessary court documents on them. This is a helpful decision, because sometimes during family law proceedings, people try to avoid being served family law documents, either to postpone the inevitable or to simply annoy the other side.
Klein was a mother who appeared to have abandoned her children and left them in the care of her own parents. When Cleary J heard the father’s application for sole parental responsibility in respect of the parties’ eight year old daughter, he noted that the mother had withdrawn from her responsibility for the subject child and her other children (to different fathers) by failing to participate in the court process to any extent.
The Court made an order that it was sufficient to serve her by posting to her Facebook page. This marks a new chapter in the ability of parties to use social media in order to serve necessary court documents. It is a long way from 1947, when some courts considered it appropriate to order that substituted service be effected by affixing a notice on the door of a court building.
Service by social media in Family Law matters appears to have been first considered in the case of Byrne & Howard as being a cost-efficient means of communication and which was reasonably available to participants in family law litigation, which is likely to lead to a situation where the person sought to be served becomes aware of the existence and nature of the documents sought to be served. Nowadays family lawyers are increasingly using online social media accounts to find people and serve family law documents. It is also possible to serve people by SMS, as was Rugby player Sonny Bill Williams in 2008.
There is persuasive authority from the technologically advanced jurisdiction of Singapore, that it is not necessary for one court to decide in advance which digital platforms are suitable for service and which are not. The Singaporean High Court was of the view that as digital platforms advance so frequently, it was inappropriate for a court to bind itself to any particular era of communication. In that case, it was held to be possible for people who were denizens of a virtual world, to actually be served in that virtual world if it could reasonably bring to the attention of such a person or the control of the Avatar of such a person, that proceedings in this parallel universe were on foot.
There is increasing preparedness in common law courts in all jurisdictions to allow such service by substituted and non-traditional means. The courts once again are showing how they are adapting to the new technologies. In England, the Rules allow a Court to authorise a service “by an alternative method or at an alternative place” if it considers there is a good reason for doing so; an applicant for such an order will still need to show other more traditional methods have been exhausted. So in DDF v YYZ (unreported, 5 June 2015) a case which involved online harassment through the platform of Instagram, the English lawyers for an unidentified plaintiff obtained an injunction, which together with the relevant restraining order were served on the harassing Instagram user via their active Instagram account. The defendant in this case was not even a known person.
The courts have previously allowed service via Twitter, so this is viewed as a likely extension of the law best stated in In Pretoria City Council v Ismail, by Schreiner J:
“Substituted service is a way of achieving in law the same result as if the proceedings… or whatever the matter may be, had been brought to the notice of the persons affected. It is not a way of establishing that such notice or other matter was actually brought to the notice or knowledge of [that…] person; it takes the place of bringing such notice … to his knowledge. So, in ordinary litigation, the summons may with the Court’s leave be served by posting or by publication or in some other manner; and when that is done, there is no doubt that the service is just as operative and has the same legal results as if the party who had to be served was presented with a copy of the document…”
It is even possible, when serving on Twitter, to gain an order to the effect that a party simply provide a brief alert indicating that the serving party had been directed to bring the relevant court document to the attention of the recipient, and providing an email address that the party was directed to contact. This gets around the 140 character limit.
A similar view was taken by the Canadian court in Boivin and Associates v Scott, where the court concluded that the defendant’s Facebook account was her only known contact information and that it would be a direct and practical way to notify her of the proceedings.