Undefended Hearings
In some circumstances a party may elect not to actively participate in proceedings before the court. That party may choose not to comply with directions made by the court, such as filing documents in response to an application or may choose not to attend court events they are required to. Such acts may place that party “in default” pursuant to Rule 10.26 of the Federal Circuit and Family Court of Australia Rules.
In the case of a Respondent, Rule 10.27 provides that “If a respondent is in default” the court has power to “give judgment or make any other order against the respondent.” In these circumstances the court may list the matter for a hearing that is commonly referred to as an “undefended hearing”.
At an undefended hearing a court will consider the evidence of the applicant, usually their affidavit, as well as any other material relied upon, such as expert reports and subpoena material that is tendered during the course of the hearing.
It is important however to note that just because the other party does not participate in these proceedings, it does not mean that the applying party will simply receive the orders that they seek. The court will still need to be satisfied that the orders are appropriate and supported by the evidence.
In the case of a parenting matters the orders must be in the best interests of the children and supported by appropriate evidence. For example, if a party seeking parenting orders seeks an order for the issue of passports and overseas travel but does not lead evidence relating to these matters the court might decline to make such an order.
In the case of a property matter the applying party will need to lead appropriate evidence as to the value of assets and the court will still need to make orders that are just and equitable. This might mean that the party that does not participate will likely still receive a share of the property pool.
Unlike a contested trial, undefended proceedings usually proceed “on the papers”. This means that oral evidence is not given by the parties by way of cross-examination, but rather submissions are made as to why the documentary evidence supports the orders being made.
If there is an Independent Children’s Lawyer appointed in the matter, they will have the opportunity to make submissions and tender evidence.
If, at this stage, the respondent attends the hearing they will likely be permitted to make submissions for or against the making of certain orders. Those submissions can only refer to the evidence that is before the court, which in the case of an undefended hearing is likely to be the evidence that supports the orders sought by the applicant.
Failure to Prosecute Proceedings
On some occasions a party may file an application either initiating proceedings or in response to another party’s application and subsequently disengage from the proceedings or fail to comply with directions made by the court to pursue their claim.
The Rules provide that an applicant is in default of if the applicant fails to:
- comply with an order of the court in the proceeding; or
- file and serve a document required under these Rules; or
- produce a document as required by Division 6.2.2; or
- do any act required to be done by these Rules; or
- prosecute the proceeding with due diligence.
The consequence of an applicant falling into default is that their application may be stayed or dismissed outright. If the other party seeks no specific orders this will have the effect of ending the proceedings.
If however the respondent is seeking orders in response they may still pursue those orders and if the applicant fails to engage with that response, the respondent may in turn pursue these orders by way of an undefended hearing.
Written by
Luke Shearston
Senior Associate
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