Service of a document is an important step in the process of a legal proceeding. “Service” refers to delivering court documents to another person in a way that is satisfactory to the Court that the person has received them.

Federal Circuit Court Rules (FCCR)

Part 6 of the Federal Circuit Court Rules 2001 (FCCR) addresses the requirements for service in Federal Circuit Court (FCC) family law proceedings if the matter is heard in the FCC. The FCC may choose to apply the Family Court Rules fully or in a modified manner, if it is FCC rules are insufficient or inappropriate (FCCR 2001 rule 1.05(2)). It is important to note that the court has the discretion to find that a document has been served regardless of whether the rules have been complied with.

‘Service by hand’ is normally required to start legal proceedings. However, rule 6.07 of the FCCR outlines when it is not required:

• When a notice of address for service is provided
• The court orders substituted service
• A lawyer accepts service for a party and files and address for service
• A lawyer accepts service for a person other than a party

‘Ordinary service’ refers to when a document can be served on a person at the person’s address for service. Generally, this can be effected by:

• Delivering it to the address or sending it through pre-paid post in a sealed envelope addressed to the person
• Fax transmission addressed to the person and sent to a fax receiver at the address
• Sending it to the number of a document exchange box of a lawyer if that address was included as an address for service
• Email, if the person has filed a notice authorising service via email

If ordinary service requirements cannot be fulfilled due to impracticalities, a person may apply for substituted service in line with Division 6.4 of the FCCR. In doing so, the court can consider some of the following factors:

• Whether reasonable steps have been taken to attempt to serve the document
• Whether it is likely that the steps taken would have alerted the other party to the existence and nature of the document
• Whether the other party could become aware of the existence and nature of the document by other means of communication that is reasonably available
• The cost to the party serving the document

Family Court Rules (FCR)

The FCR specifies that service of documents can be done through ordinary service or special service in accordance with rule 7.03.

‘Special service’ requires the documents to be served personally. This includes:

• Service by hand
• Post/Electronic communication – if electronical communication is chosen, the applicant must include an Acknowledgement of Service for the receiver to sign and, for service via Auspost, a stamped self-addressed envelope (rule 7.07)
• Service through a lawyer, who must agree in writing to the method in writing

Again, ‘ordinary service’ only applies if special service is not required. This includes:

• If address for service provided:
  • Delivering or sending a sealed envelope to the address of the person being served
  • Sending a fax or email to the address stated on the address for service
• If no address for service provided:
  • Handing it to the person
  • Delivering or sending it to the person’s last known address/place of business in a sealed envelope
  • If the lawyer agrees in writing to receiving the documents, then the lawyer’s address or email address or PO Box

Recent cases

Substituted service via social media

In Byrne & Howard [2010] FMCAfam 509, Ms Byrne sought orders for a declaration that Mr Howard was the father of her young child. Byrne and her lawyers were unable to serve court documents upon Howard. Consequently, the Court made an order allowing substituted service through social media. The relevant documents were ordered to be sent to him through Facebook, which he used regularly. The Court was satisfied that service via social media was appropriate because the following reasons showed there were reasonable attempts taken by the applicant to serve the other party:

• They received no response from Howard after sending documents to his address for service, his parents’ address, and his girlfriend’s address
• A process server was also unsuccessful in attempting to serve the documents at Howard’s parents’ address

Also, the Court was satisfied it was highly likely Howard would be aware of the existence and nature of the documents because evidence was tendered showing that Byrne owned the Facebook account and used it regularly.

Substituted service via email  

In Kozar [2013] FCCA 339, Ms Kozar, the mother, sought orders permitting service to be effected through email to the father, Mr Kozar, because she only had his email address. Mr Kozar refused to provide any other addresses and it was believed he was no longer living in Australia at that point. Ms Kozar also wished to obtain passports for her children but was unable to because she was could not obtain consent from the father.

The Court was satisfied the father was aware of the court proceedings and that the only method of contacting the father was through email. The court granted ex parte parenting orders with substituted service via email on the father. The court also granted the mother sole parental responsibility for the child and allowed the mother to apply for a passport for the child without needing to obtain the consent from the father.

It is important to note that social media profiles can always be faked or controlled by other people. Consequently, courts require evidence of a clear connection between the person to be served and the social media account. A contrasting civil case, Flo Rida v Mothership Music Pty Ltd [2013], demonstrates the difficulties of proving a ‘clear connection’, as the Court found that service could not be effected through singer Flo Rida’s Facebook as it was likely to be a fan account and would not be checked by Flo Rida or his management team. Ultimately, this meant the documents would not come to the attention of Flo Rida.

These cases reflect how the courts are exploring cost-effective options within this era of social media. Nevertheless, it will always be vital for the courts to consider the practicality of such options. Service through social media will always be considered as the “last resort” to serve a person if there are no other reasonable options. Substituted service through social media is therefore exceedingly rare – the requirement to prove it would come to the attention of the person to be served is notoriously difficult.

The above information is intended as general information and is not intended to be relied on as legal advice. If you are considering applying for parenting orders or are looking to vary current parenting orders, contact one of our experienced family law solicitors on (02) 9920 1787 to discuss how we may assist you to achieve a favourable outcome.

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