Table of Contents
Application for undefended proceedings
The Court can make Orders where a party has been given an opportunity to participate in the proceedings but fails to do so.
Principles
The Family Law Rules provide mechanisms that allow the Court to determine a case if a party does not comply with the Rules, Family Law Regulations, or procedural orders.
Family Law Rules 1.33 states:
Failure to comply with a legislative provision or order
(1) If a step is taken after the time specified for taking the step by these Rules, the Family Law Regulations or a procedural order, the step is of no effect.
(2) If a party to a proceeding does not comply with these Rules, the Family Law Regulations or a procedural order, the court may do any of the following:
- (a) dismiss all or part of the proceeding;
- (b) set aside a step taken or an order made;
- (c) determine the proceeding as if it were undefended;
- (d) order costs;
- (e) prohibit the party from taking a further step in the proceeding until the occurrence of a specified event; or
- (f) make any other order the court considers necessary.
The Court can order the matter to proceed on an undefended basis.
The expression “undefended” is not defined, or otherwise explained, in the Rules. However, the Explanatory Guide to the Rules (which is expressly stated not to be part of the Rules) explains the term “undefended basis” in the following way:
…the court may order that a hearing or trial may proceed, because of the respondent’s failure to comply with a rule or order, as if a response has not been filed. The Court may make orders set out in the application on being satisfied by evidence that the orders should be made.
The Rules deal with when a Respondent is in default and provide as follows:
A Respondent is in default if the Respondent fails to:
- (a) give an address for service before the time for the Respondent to give an address has expired; or
- (b) file a response before the time for the Respondent to file a response has expired; or
- (c) comply with an order of the Court in the proceeding; or
- (d) file and serve a document required under these Rules; or
- (e) produce a document as required by Division 6.2.2; or
- (f) do any act required to be done by these Rules; or
- (g) defend the proceeding with due diligence; or
- (h) prosecute with due diligence any application the Respondent has made in the proceeding.
If a Respondent is in default, the Court may:
- (a) order that a step in the proceeding be taken within the time limited in the order; or
- (b) give judgment or make any other order against the Respondent; or
- (c) make an order referred to in paragraph (b) to take effect if the Respondent does not take a step ordered by the Court in the proceeding in the time limited in the order.
The Court may make an order of the kind referred to in subrule (1) or (2), or any other order, or may give any directions, and specify any consequences for non-compliance with the order, that the Court thinks just.
While the Court cannot compel a person to participate in litigation, the Court must afford a party an adequate opportunity to be heard. Before a matter can proceed on an undefended basis, the Court must be satisfied that all parties to the proceeding have had an opportunity to be heard. The manner in which an undefended hearing may be conducted will vary depending on the circumstances of a case.
The Court has wide discretion in relation to the involvement of the defaulting party. The Court has discretion as to how to conduct a hearing when a case is undefended. The discretion “must be tempered with regard to procedural fairness, natural justice, and the requirement to do justice to all of the parties.”
A party that seeks judgment on an undefended basis is not entitled by the right to the orders he or she seeks simply because the other party fails to prosecute his or her case. In parenting proceedings, the Court is required to make orders that are in the best interests of the children.
In property proceedings, the Court must be satisfied that any orders made are just and equitable. The Court must still decide, on the evidence before it, that the applicant is entitled, in law, to the relief claimed and that, in the exercise of its discretion, it is appropriate to grant that relief.
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