In a world where the internet and technology have progressed to a place where a relationship can be started with a simple ‘swipe’, ‘like’ or ‘snap’ on social media, it doesn’t seem too hard to believe that a relationship can breakdown over a ‘screenshot’ or ‘instant message’. 

It is common for parties in family law proceedings to use social media as a tool to adduce evidence to strengthen their position. No matter how private one may think their profile is, the information is readily available for the picking. And screenshotting.

What is harder to ‘follow’ is that social media has become so intrinsically involved with our lives that court documents can now be served via Facebook Messenger.
As a rule, documents in family law proceedings require ‘special service’, meaning the court must be satisfied that the person served received the document. There are (generally) three ways to satisfy the court of this:

  1. Delivering the documents by hand using a process server or any other person over 18;
  2. By post or electronic communication (email). Utilising this method requires the person being served to sign an acknowledgment and return it to you. If no acknowledgment is received, the application may be delayed. 
  3. By service on a lawyer representing the person being served. The lawyer must have previously agreed in writing to accept service.

It would be safe to conclude from this that a Judge would hesitate before ordering service via Facebook Messenger as appropriate and would do so only where all other avenues of attempting to locate and serve the person have been exhausted. 

Earlier this year, a father made an application in the Federal Circuit Court to have sole parental responsibility of his child. The mother, who was an active Facebook user, had disengaged from proceedings. Following many unsuccessful attempts by the father’s solicitor to serve documents on the mother, a Registrar of the court made an order allowing documents to be served via Facebook Messenger. This was accepted as good service of the documents by Judge Cleary who went on to grant the husband’s application. It was determined the mother was fully aware of the proceedings, but chose not to involve herself in them.

While individuals might ‘like’ the idea of using social media to serve documents in family law cases this method cannot be used without a specific court order permitting service in this manner.

For more information, please contact:

Jenny Orchard
Principal
T 03 5430 3801
E jorchard@ha.legal

Melissa Buchanan
Associate
T 03 5430 802
E mbuchanan@ha.legal

This article was prepared with the assistance of Ashleigh Pearse, Graduate Lawyer