Undefended Hearings in Family Law

The idea of a family law hearing suggests two parties fighting over property division or parental responsibility. However, not every hearing has two active participants, as one party may refuse to cooperate or not wish to be present during the proceeding. When one side fails to attend to present their case, the Federal Circuit and Family Court of Australia (or the Family Court of Western Australia) can allow an undefended hearing. This does not mean that the party who attends will automatically “win” the case, but there are undeniable advantages for the party that does appear in court.

Undefended hearings in family law

The initiating party in a family law matter can ask the court to proceed on an undefended basis if the responding party has failed to engage with the proceeding. Under the Family Court of Australia 2004 Rules, the court is permitted to hear a trial even when one of the parties fails to attend. The court can choose to hear an interlocutory hearing, an application in a case, or a final hearing on an undefended basis. In such cases, the court can make any requested orders that are supported by the evidence.

Reasons for non-appearance

Sometimes a party may choose not to appear at a hearing because they do not wish to oppose the other party’s application. They may decide once they receive the application to just allow the court to make the orders in their absence. This is typically not the best approach, because if the parties actually agree, they should enter into consent orders without proceeding to a court hearing.

There are other reasons why a respondent may fail to appear, including lack of understanding, disinterest in the topic of the hearing, and substance abuse or mental health issues. In parenting matters particularly, this failure can signal to the court that the non-attending parent is insufficiently invested in the best interests of the child. However, just because one party fails to show up to court does not mean that the legal proceeding halts completely.

Procedural fairness

The court’s priority when it comes to permitting undefended hearings is ensuring procedural fairness. The court must ensure that the non-compliant party was given adequate opportunities to appear and participate in their case. The onus is on the initiating party to prove that they adequately effected service to the responding party, and that the absent party was put on notice that an undefended hearing is listed and will be heard in their absence. Basically, the applicant needs to prove that they did everything reasonable to ensure that the other party knew that the hearing was going to take place. This proof can be furnished by documenting the non-compliance of the other party, their failure to appear on notified court dates, and their general lack of communication.

Obligations in an undefended hearing

With an undefended hearing in a family law matter, the initiating party must file all the necessary documents to lay out the full facts of the case and convince the court that the requested orders should be made even in the absence of the respondent. The Family Court of Australia established the legal principles for an undefended case in Zane & Allan [2008], namely that the participating party has a duty of full disclosure, to act in good faith and to provide admissible evidence to the court. The duty of full disclosure remains in place even when a hearing is undefended. For instance, in a property matter, the applicant should present information relating to assets and liabilities, future needs, financial and non-financial contributions, earning capacity, health issues and any other relevant material.

In parenting matters, the applicant should provide evidence about the relationship between the child and the absent parent, any allegations of abuse, neglect or family violence, and any issues that might inform the court as to the best interest of the child. The initiating party may need to make enquiries with the responding party to gather this information, and if there is no reply, retain proof of their efforts to make contact.

In undefended hearings, the court needs to rely on the evidence presented by the applicant, as the other party is not present to question these submissions. As such, it is best to file neutral and authoritative evidence, such as expert medical and valuation reports. The applicant’s submissions should contain sufficient evidence for the court to decide the matter, even if some of it weighs in favour of the absent party. Additionally, the court has also held that it is often appropriate to give regard to evidence that the absent Respondent had previously filed with the court.

Case study

In Kassis & McKinley [2020], the court heard a parenting dispute on an undefended basis. The father had initially sought orders for equal shared parental responsibility, with the child living with his mother but spending regular time with the father. The mother was originally open to this arrangement but by the final hearing, she sought sole parental responsibility on the basis of family violence and the father’s substance abuse issues. By that point, the father had disengaged from the proceedings, failing to attend court events despite being notified. The court decided to proceed to the final hearing in the absence of the father and judged that the orders sought by the mother and supported by the Independent Children’s Lawyer were in the best interest of the child. Further, the court noted that the father’s disengagement is “the most salient feature” in the case, and effectively “forfeited his interest in participating in the child’s life in all respects”, and the child would not benefit from having a meaningful relationship with him.

Undefended hearings are unusual, but when they occur they play an important role in family law proceedings in Australia. For assistance with this legal issue or any other family law matter, call Go To Court Lawyers on 1300 636 846.