What if you can't serve your ex?
Mar 03, 2012 | Love Law
If you can't find your ex in order to serve a legal document, what do you do?
In just about every area of law, including family law, if you want to take somebody to court you have to deliver legal documents to them in person.
This is known as service, serving documents or process serving.
But what if you can't find the person you want to take to court, usually your ex in family law matters? What if he or she refuses to accept the documents and you don't feel comfortable just throwing them at his or her feet and saying "you've been served!"?
A court can make an order for what is known as "substituted service", which will allow you to give legal documents to somebody by post, e-mail, social media or in other ways other than personal service.
Australian barrister Ross Bowler summarises a case that identifies some key issues surrounding substituted service (you can read the full & original article by clicking here):
In Byrne & Howard [2010] FMCAfam 509 (21 April 2010) Brown FM had such an application to consider.
Relevantly His Honour informed us of the criteria the Court will consider in an application for substituted service under the Federal Magistrates Court Rules 2001, namely:
- Whether reasonable steps have been taken to attempt to serve the subject document/s;
- Whether those reasonable steps are likely to have brought the existence and nature of the documents to the attention of the person being sought to be served;
- Whether the person to be served could become aware of the existence and nature of the documents in question by means of an advertisement or some other means of communication that is reasonably available;
- The likely costs of the substituted service to the Applicant; and
- Any other relevant matter.
His Honour went on to find that:
- The Applicant and those advising her had taken all reasonable steps to serve the document in the normal way prescribed by the Rules.
- It is highly likely that the application had been brought to the attention of the Respondent in one of several ways:
- Either one of the letters has got to him in some way;
- He has heard, via his father, that the Applicant is looking for him; and
- He has read the email which contains the documents in question and which was sent either to the Facebook account which he holds or to the MySpace account.
Service via Social Media
His Honour subsequently confirmed that:
- Service by Facebook and MySpace was a means of communication which was reasonably available to all concerned;
- That method of service is likely to lead to a situation where the Respondent and person sought to be served becomes aware of the existence and nature of the documents sought to be served; and
- It is a cost-efficient method.
Conclusion
So in any application for substituted service in the Federal Magistrates Court under Part 6 (Service) of the Federal Magistrates Court Rules 2001, the supporting affidavit material of the Applicant will need to clearly show the following:
- Reasonable steps have been taken to attempt to serve the subject document/s;
- The proposed method of service is likely to bring the existence and nature of the documents to the attention of the person sought to be served;
- The extent to which the person to be served could become aware of the existence and nature of the documents in question by means of:
- an advertisement; or
- some other means of communication that is reasonably available;
- The likely costs to the Applicant of the proposed substituted service;
- The proposed substituted service is a cost-efficient method; and
- Why the discretion ought be exercised in favour of granting the requested substituted service.
In addition where service is sought to be effected by way of social media, the evidence before the Court must show that:
- The person who created the relevant social media page is indeed the Defendant;
- The relevant social media profile was in fact the profile of the Defendant;
- The Defendant was regularly accessing his relevant social media account; and
- The Defendant would reasonably get notice of the relevant document/s, if a private message or email was sent to his account.
As you can see the topic of substituted service can be complex so it is definitely worthwhile consulting with a family lawyer if you find yourself unable to service somebody.
This article is general information only and is not legal, medical or psychological advice. Consult an Australian Legal Practitioner via Love Law Online Legal Consultations to obtain legal advice for your unique situation.
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