Byrne and Howard - [2010] FMCAfam 509

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BYRNE & HOWARD

[2010] FMCAfam 509

CHILD SUPPORT – Application for parentage testing and declaration of paternity – application for administrative assessment of child support – service – application for substituted service – service on social networking site – whether appropriate service.

Federal Magistrates Court Rules 2001, Rule 6.14; 6.15

Applicant:

MS BYRNE

Respondent:

MR HOWARD

File Number:

ADC 321 of 2010

Judgment of:

Brown FM

Hearing date:

21 April 2010

Date of Last Submission:

21 April 2010

Delivered at:

Adelaide

Delivered on:

21 April 2010

REPRESENTATION

Counsel for the Applicant:

Ms Arrowsmith

Solicitors for the Applicant:

Legal Services Commission of SA

Counsel for the Respondent:

No appearance

ORDERS

In lieu of personal service the application filed 22 January 2010 is taken to have been served on the respondent herein.
Pursuant to section 69VA of the Family Law Act 1975, this Honourable Court make a finding that MR HOWARD is the father of the child [X] born [in] 2009.
Pursuant to Section 106A of the Child Support (Assessment) Act 1989 this court makes a declaration that Ms Byrne is entitled to an Administrative Assessment of Child Support payable by the said

MR HOWARD in respect of the aforesaid child.
That strict compliance with the requirements of Rule 25A.06 of the Federal Magistrates Court Rules be dispensed with.

IT IS NOTED that publication of this judgment under the pseudonym Byrne & Howard is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADC 321 of 2010

MS BYRNE

Applicant

And

MR HOWARD

Respondent

REASONS FOR JUDGMENT

These reasons for judgment were delivered orally following the short hearing. Because of the unusual aspects of the case, the reasons have been transcribed.
The matter of Byrne and Howard is listed before me this morning. It is in some ways an unusual matter, but in other ways it is demonstrative of social movements and the currency of the times.
The applicant in the proceedings is Ms Byrne. The respondent is

Mr Howard. Ms Byrne began these proceedings on 22 January 2010. She is the mother of a young child, [X], who was born [in] 2009.
It is Ms Byrne’s evidence that the father of [X] is Mr Howard.

Ms Byrne and Mr Howard were not married to one another. The relationship between them was brief. Accordingly, when [X] was born, the birth certificate which issued does not indicate who his father is.
As a consequence, when Ms Byrne applied for an assessment of child support, as she is entitled to do, her application was rejected by the Child Support Agency because she had produced insufficient legal proof of paternity.
As a consequence, she commenced these proceedings. Clearly she did that expeditiously. Ms Byrne then believed that Mr Howard was living at an address in [W].
As a result, she instructed her solicitor, Ms Schilton originally, to write to Mr Howard at his address in [W]. He was invited to take part in a parentage testing procedure, which would have put the issue of [X]’s paternity beyond any shadow of doubt. In the alternative, Mr Howard was also asked to complete a statutory declaration in which he could attest to the factual basis of [X]’s paternity.
He did not respond to any of the letters that were sent to him. However the letters were not sent back to Ms Schilton, by the postal service, as being unclaimed.
I know very little about Mr Howard, but it would seem to be the case that he does not have a stable lifestyle, in terms of his accommodation.

I am not critical of him for that, but it is clear that he moves fairly regularly.
Other attempts were made to bring Ms Byrne’s application and her position regarding [X]’s paternity to Mr Howard’s attention. A letter was sent to an address that was believed to be Mr Howard’s parents in Adelaide, and again this letter was not returned unclaimed.
Finally on 14 December 2009, a letter was sent care of Mr Howard’s current girlfriend, again asking him to take part in either the paternity testing or sign a statutory declaration.
All of these avenues proved unsuccessful in terms of eliciting a formal response from Mr Howard, but the postal authorities, as I say, did not return the letters.
The applicant’s solicitor engaged a process server, Mr H, to see if the documents could be personally served on Mr Howard at his parent’s address, which is in Adelaide.
Mr H went to that address on 6 February 2010, where he spoke to a gentleman who advised him that he was the respondent’s father. This gentleman said that Mr Howard was in Queensland and he had not heard from him for some time. A card was left by Mr H asking Mr Howard to contact him but nothing further was heard.
This was the background to the matter coming before me for the first time on 18 March 2010. At that stage, it seemed to me that Ms Byrne and her advisors had done as much as they could to conventionally bring the proceedings to Mr Howard’s attention.
It also seemed likely to me that Mr Howard was most probably aware of the proceedings and had at the very least been told about one of the letters, which had been trying to find him, if it had not actually found him in fact.
On that occasion, I was told that Mr Howard had an entry or rather a site on the social networking site called Facebook. I was told by Ms Arrowsmith, who appeared on that occasion, that it was possible for a private message to be left on that website for Mr Howard.
On that basis, I was prepared to make an order that the documents in this case be served on Mr Howard by way of electronic means, as a substitute for personal service.
Today, Ms Arrowsmith has filed an affidavit setting out what she has done in respect of the matter. It is her evidence that it is known that

Mr Howard uses Facebook regularly. I have been shown a copy of the public entry for Mr Howard on Facebook, which has a photograph of Mr Howard on it, as well as his profile and details of the persons who are his electronic friends. Ms Byrne has identified the photograph as being Mr Howard.
As a result of this information, the documents in question have been sent to Mr Howard on his private site. An electronic receipt, or an electronic confirmation, has come back from Microsoft Exchange which is the relevant server. The receipt includes that delivery is, to use the jargon, complete. But a formal delivery notification has not been sent by the destination in question, namely Mr Howard himself.
More importantly perhaps, in the context of this matter, Ms Byrne has discovered that Mr Howard has taken down his site, after the correspondence came from Ms Arrowsmith. A short time afterwards, a similar process has been followed with the social networking site MySpace, where Mr Howard also has a site.
In all the circumstances, I am satisfied that it is appropriate that these proceedings, should be taken to have been brought to Mr Howard’s attention and it should be found that he has been properly served with the documents in this matter.
The matter is governed by the provisions of Division 6.4 of the Federal Magistrates Court Rules. In particular, if it is found that, for any reason, it is impracticable to serve a document as required by the court rules - and in this case, this type of application and the documents supporting it, ordinarily should be served personally - the court may make an order dispensing with service, or substituting another way of service of the document concerned. The matters to be taken in to account in making an order for substituted service are set out in rule 16.15.
I have to consider, firstly, whether reasonable steps have been taken to attempt to serve the document; secondly, whether it is likely that steps have been taken that will have brought the existence and nature of the documents to the attention of the person being sought to be served; thirdly, 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; fourthly, I have to consider the likely costs to the applicant, who has to serve the document in question; and finally, I can consider any other relevant matter.
In this case, I am satisfied that Ms Byrne and those advising her have taken all reasonable steps to serve the document in the normal way prescribed by the rules. I think, in the circumstances of this case, I can reach or make the inference that Mr Howard is not particularly amenable to the process of these proceedings.
I also think it is highly likely that the application has been brought to Mr Howard’s attention in one of several ways: firstly either one of the letters has got to him in some way, secondly he has heard, via his father, that Mr H is looking for him; and thirdly and perhaps most relevantly, he has read the email which was sent either to the Facebook account which he holds or to the MySpace account and which contains the documents in question.
In this regard, I think it is the case that this is a means of communication which is reasonably available to all concerned, and as such, that it is likely to lead to a situation where Mr Howard has become aware of the existence and nature of the documents through which Ms Byrne has instituted these proceedings in this court.
Finally, of course, it is a cost-efficient method, and it may be that although the process servers that have been retained in this matter were happy to assist, ultimately it may not be of assistance to their ongoing business, as the 21^st Century unfolds, but that’s another question.
So I am satisfied that the application has been served properly on

Mr Howard and therefore it is appropriate that these proceedings be finalised without any formal input from Mr Howard. Accordingly, I will make a finding that Mr Howard is the father of the child, [X], born [in] 2009, and further, pursuant to section 106A of the Child Support Assessment Act, it is declared that the applicant Ms Byrne is entitled to an administrative assessment of child support for the aforesaid child payable by Mr Howard.
I have read Ms Byrne’s unchallenged evidence which indicates she had a relationship with Mr Howard, which produced [X]. Mr Howard has not contacted Ms Byrne’s solicitors to indicate his desire to undergo a parentage test with Ms Byrne and [X]. Such a test would put [X]’s paternity, so far as Mr Howard is concerned, beyond any shadow of either scientific or legal doubt.
In these circumstances and given that I accept that these proceedings have been effectively brought to Mr Howard’s attention, I consider that the only reasonable inference I can draw from Mr Howard’s non involvement in these proceedings is that Mr Howard is aware that the parentage test can have only one outcome because he is [X]’s father.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: P Smith

Date: 21 April 2010