It may seem obvious that an undefended hearing in our family law courts would mean continuing litigation in circumstances when the other party has failed to engage. After all, your ex simply not showing up in court can’t be enough to stymie your legal proceedings, so if a party fails to appear either at interlocutory, application in a case or final hearing stage, it’s possible for the courts to continue the proceedings on an undefended basis. This does not however mean that the appearing party will “win” every order they are seeking, although in practice it can give that party an inescapable advantage over the other.
An undefended hearing
If a responding party doesn’t engage at all their family court proceedings, the initiating party can ask the court to proceed on an undefended basis. The initiating party can then make submissions to the court regarding what remains necessary to be done to finalise the matter.
The courts have to make sure there have been adequate opportunities afforded to the non-compliant party to appear and participate in their case. The onus is on the initiating party to prove they effected service to the responding party, and to detail all aspects of the non-compliance and lack of communication with the other party, evidence or proof of service or communication with the responding party, details of respondent’s persistent failure to file responding document or to attend court dates.
If an initiating party is granted leave to proceed on an undefended basis, that party usually would be required to file the relevant court documents for the cases to be determined undefended. In a situation such as this, submissions made by that party need to convince the court that orders should be made as sought, when the other party is not present to contest the application. Therefore the submissions must set out all relevant facts of the case, and the court must be presented with sufficient and appropriate evidence relating to property matters including values of assets and liabilities, contributions, future needs, earning capacities, health issues and any other circumstance that might affect the case, even if these are considerations that may weigh in favour of the other party.
Continuing duty of disclosure
The duty of full and frank disclosure remains intact even if a hearing is undefended. This means the initiating party needs to make enquiries with the responding party regarding assets and liabilities, and if contact can’t be made, proof that an effort was made to contact the party. The initiating party also must provide the court with evidence regarding assets and liabilities. In support of this, it may be necessary to file expert valuation reports (since the other party isn’t able to dispute the value of assets), or health expert reports. Always allow enough time for the relevant experts to prepare their reports.
A recent case
A recent parenting dispute heard in the family court, the matter of Kassis & McKinley (court-ordered pseudonyms) involved a father who had disengaged with proceedings. The mother was granted sole parental responsibility and custody of the 10 year old boy.
The father had originally sought orders that the parental responsibility be equally shared and that the child live with the mother but spend time with him. While earlier in proceedings the mother had been “open to the child maintaining a relationship with the father”, by the time it reached the final hearing, she had raised concerns over family violence and the father’s illicit drug use, and sought orders for sole parental responsibility and custody.
The father didn’t attend court events throughout the proceedings despite it being proven that he was continually made aware of relevant dates and consequences. So the litigation proceeded to final hearing to decide the matters with finality in the absence of the father. The court was tasked with deciding whether the orders sought by the mother (and supported by the Independent Children’s Lawyer) were in the best interests of the child. Note the judge’s comments that “in light of the matter proceeding on an undefended basis, the father’s material is not read.”
“The father’s disengagement in the proceedings is the most salient feature in the resolution in this dispute. The father can be taken from his disengagement to have forfeited his interest in participating in the child’s life in all respects.
“The father…can be taken to accept that the child will not benefit from him having a meaningful relationship with him as he has not pursued any orders that would foster any such relationship.”
You can read this case in full here.
If you need assistance with a family law matter, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.