Facebook service approved

Facebook service approved

Maguire & Klein

Summary – Effecting Service – Where the mother has not attended Court, filed documents or participated – Where the evidence supports the mother has withdrawn from parental responsibility – Where the solicitor for the father went to extraordinary lengths to locate the mother – Where the Registrar orders that service can be effected by Facebook – Where the documents served via Facebook are marked as “seen” – Where there is no response – Where there are no concerns expressed for the child – Ordered that the father have sole parental responsibility – Ordered that the child live with the father

INTRODUCTION

1. This is an application by Mr Maguire for parenting orders in respect of one child, B, aged eight years. The applicant is the father of the child. The respondent, Ms Klein, is the mother of the child.
2. The mother has not attended this Court, filed documents or participated in the recent conference with the family consultant. The evidence supports a finding that the mother, after she placed all three children into the care of her parents in late October 2015, has withdrawn from her responsibility for them and in particular the subject child.
3. The maternal grandmother alerted the respective fathers of the three children to the mother’s actions.
4. In February 2016 the father flew to Australia, collected the child from her maternal grandparents and took her to live with himself and his wife. the child has lived with him since then. The two younger children, likewise, have now lived with their own father since December 2015.

SHORT HISTORY OF RELEVANT EVENTS

5. The parties were in a domestic relationship between 2007 and February 2010, living on the North Coast of New South Wales. Following separation, the child, then aged two, remained with her mother and saw her father on most weekends.
6. In about April 2011, the mother began living with Mr C. There were two children of that relationship, boys, now aged five and a half and four years.
7. Towards the end of 2013 the father took up his present employment and moved to live and work in the Middle East.
8. In about March 2014, the mother separated from Mr C and moved with the subject child and the two younger children to live with her parents on the Central Coast of New South Wales.
9. The evidence is unclear as to how long the mother and children lived with the maternal grandparents.
10. There is at least a suggestion that the mother may have had another partner, “Mr D”. During the Children and Parents Issues Assessment the child described a time when her mother did care for her. She said that there were, however, a couple of key points of change. One was when [Mr C] was in her life,^[1] “When they met, it was so different. I thought why is my life changing? I don’t know what to do”. The other was “When [Mr D] came back, she fully changed. It was freaking me out. I just want her back. Mum has gone full out of control”.
11. In 2014 the father married his wife, Ms Maguire. They have one child, a girl, aged nine months, born late in 2015.
12. In July 2015 the mother was charged with “possess prohibited drug”. These papers were found subsequently by the maternal grandparents.
13. On 1 November 2015 the mother moved out of her parents’ home, leaving the three children in their care. The children then moved off to live with their respective fathers, as stated.

THE CURRENT PROCEEDINGS

14. On 20 April 2016 the father filed the following documents:
    1. an Initiating Application seeking orders for sole parental responsibility and residence of the child;
    2. a Notice of Risk which identified that the child was being neglected as to being fed and sent to school;
    100. an Application in a Case;
    4. an Affidavit sworn by himself; and
    5. a Non-filing Family Dispute Resolution Certificate.
15. On 24 May 2016 the solicitor for the father filed an affidavit setting out his attempts to locate the mother which had been unsuccessful.
16. On 25 May 2016 a registrar of this Court referred to the solicitor as having gone to “extraordinary lengths” to locate the mother. I agree. The registrar made an order for service of the father’s document to be effected by forwarding the documents to the respondent mother at her Facebook Messenger page.
17. On 24 June 2016 the solicitor for the father filed an Affidavit of Service, attested to having served the relevant documents together with a covering letter to the mother advising of a date for undefended hearing, which had been 28 July 2016 but which was amended to 5 August 2016. Both dates were advised.
18. On 11 July 2016 there was correspondence between the father’s wife and the mother on Facebook Messenger. It is contained in Annexure C of the Affidavit of the father sworn 24 July 2016. This was a request by the father’s wife for the mother to provide her latest telephone number. The mother’s response is as follows, “Sorry, I have not had Facebook on. Can I please talk when I wake up properly? It’s so early here. Give my lil ms a big kiss from me”. The response of the father’s wife was, “Are you really going to ignore us? This is for your daughter”. There has apparently been no communication from the mother since.
19. On 28 July 2016 the father filed a further Affidavit, sworn 24 July 2016. This was an updating affidavit providing information about the child as to her education, health, need for orders to support a residence permit in the Middle East, attendance for the child on a psychologist to address the nightmares she had been having, and proposals for visits for the child in Australia.
20. On 3 August 2016 the solicitor for the father filed an Affidavit of Service in relation to the recently sworn Affidavit of the father, 28 July 2016. This was served on the mother’s Facebook page on Thursday 28 July 2016 and was marked “seen” at 16.03, presumably, but not inevitably, by the mother.
21. On 5 August 2016 this Court made interim Orders in accordance with the father’s Application in a Case and an order for the parties and child to attend on a Family Consultant for a Child-Inclusive Conference. On that day, the paternal grandfather and his partner were in Court and they indicated they and the maternal grandmother had had no contact from the mother.
22. On 24 August 2016 the solicitor for the father filed an Affidavit of Service in relation to providing the mother with the letter of appointment for the Family Consultant.
23. There was no response.
24. On 9 September 2016 the Children and Parents Issues Assessment took place. The mother did not attend. The father and child did attend. The child was reported as being “overwhelmingly happy with her current circumstance”.^[2] The child described neglect of herself and the two younger boys,^[3] being under attack in the place where they were living,^[4] hiding with the mother in the bathroom, and the child no longer wanting to see her mother. The report expressed no concerns for the child and recommended that she continue to live with her father and he to have parental responsibility.
25. On 12 September 2016, amended Orders issued and the matter was listed for mention today.

CONCLUSION

26. There is no appearance by or on behalf of the mother today. The mother has the father’s contact details, I accept, and is therefore choosing not to make contact. The father has expended costs in these proceedings and is likely to have the full financial cost of raising the child on current indications.
27. I am satisfied that it is appropriate now to finalise these proceedings and I do so by making final Orders in accordance with Orders 4 to 10 inclusive of the interim Orders made in the amended Orders of 12 September 2016.