An application for substituted service by text message was declined in the District Court because the judge was not satisfied the CFA solicitor could effect service and that the message would be received. The judge advised it was more appropriate to bring an ex-parte application the following week when the CFA intended making the ICO application.
(Service – when notice is served of an up-coming court application – is normally done via ordinary post or registered post when the person is known to live at a particular address. Substituted service can sometimes be done by email if the person is outside of the country at an unknown address and is actively using their email account or is living in the country at an unknown address but is known to be actively using their email account or their phone, then service can be deemed good via email or text message. When a person is homeless and not using their phone, substituted service is not a possibility as per this hearing.)
In making the application for substituted service, the CFA solicitor told the court that the social worker had tried to contact the parents on their mobiles. Both parents were homeless and had four children, three of whom were the subject of Interim Care Orders. There was also a fourth child, a very young baby for whom an initial ICO application would be brought the following week.
The solicitor said that the mother was attending a drug treatment centre and the placement in her hostel had ended two weeks ago. The parents had missed nearly all their access visits. Efforts had been made by the CFA to locate the parents, but they often slept rough.
While it was known that the parents contacted the Central Placement Service (CPS) for the homeless, the CPS could not inform them of the location of any of the hostels that the parents had slept in. The social work department had also contacted the parents’ social welfare office to find out where and when the parents picked up their social welfare payments, however the office was unsure if they could give out that information and were seeking advice on the matter.
The social worker had tried to contact the parents on their mobiles but they were always switched off and there was no voicemail service, said the CFA solicitor. There had been phone contact with the mother eight days previously, but that had been through the drug treatment centre. There had been no contact with the father since last month.
The judge said: “The phone is switched off, there is no voicemail, it doesn’t ring and there is no reason to believe the phone functions.” He said he was not going to make an order for substituted service for something that was not getting there. “If it’s not ringing I’m not making an order for substituted service,” he told the solicitor.
The court said the CFA solicitor would have to make an ex-parte application, “make your application on the day on foot of that evidence” [that the phone did not ring or have an answering machine]. “It is more likely that it’s not being used, it is no longer ringing, there is no facility for an answering machine. I don’t think I can make an order for something that is not going to be received.”
The judge said service was normally done via registered post or ordinary post, “you serve to someone you know is there. I’m not satisfied that you can effect service, that’s the real problem.”
He declined the application.