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If a party has commenced family law proceedings in the Federal Circuit and Family Court of Australia (whether in relation to parenting or property matters) and the Respondent does not participate, the matter can, and eventually will, proceed without them.
In deciding whether to proceed without the Respondent, the Court will always make sure that sufficient attempts have been made by the Applicant to serve the Respondent with relevant documents and seek their engagement in the proceedings.
If the Applicant can demonstrate those attempts have been made, and the Respondent ignores them, the Court will order that the matter proceeds on what is known as an 'undefended basis'.
The Court will not do so lightly and often gives the Respondent multiple chances to participate. However, if after multiple Court events, the Respondent has been properly served and chooses not to engage, the Court will make orders based on the information available.
This may lead to a disproportionately advantageous outcome for the Applicant, as the Respondent was not heard. By that stage however, the fact that the Respondent was not present to participate is of little consequence to the Court - it must exercise its jurisdiction to finalise the matter.
So, if you bury your head in the sand, there are consequences.
But what happens if you bury your head in the sand, and then pop back up? Is it too late? Is there a way out of the quicksand?
The answer is yes.
When can Court orders be set aside?
Under rule 10.13(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, the Court can vary or set aside an order made in the absence of a party.
When considering an application, the Court generally follows this pathway:
- the reason for the non-appearance or absence, and whether there's a reasonable explanation;
- arguments available to the Applicant that might reasonably lead to the making of a different order;
- whether there's prejudice to the party with the benefit of the orders, that's not able to be adequately addressed by the Court;
- whether there's been a delay in the application, and if during the delay, the successful party acted on the judgment, or third parties acquired rights in reference to it;
- the conduct of the Applicant since the judgment or order sought to be set aside was made.
Whether an application is successful is entirely a matter for the Court's discretion and the Court is not bound to give one matter more weight than another.
Need legal advice?
If you find yourself facing family law proceedings where the other party is not participating, or if you have missed Court events and are concerned about orders being made without your input, it's crucial to seek specialist legal advice as soon as possible. Each case is unique, and understanding your options early can make a significant difference to your outcome.
At Coleman Greig Lawyers, our experienced family law team can guide you through the complexities of undefended hearings and help you take the right steps to protect your interests. Contact us today for a confidential discussion tailored to your situation.
You can read more about undefended hearings here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
