What Happens if I do not Attend Court?

You have just been served with Court documents in relation to property settlement and/or parenting matters from your former spouse which can be confusing, stressful and intimidating. This can be the case if you do not get on well with your former spouse and you do not have the money to hire a lawyer to represent you. It can be very tempting to either ignore the documents and fail to attend Court or fail to file any documents in the proceedings.

Failing to attend Court or file documents, does not mean that a Judge will withhold making Orders about a property settlement; which could include the sale of your assets and/or your time and your contact with your children.

At first instance, the Judge will usually give you an opportunity to file documents and attend Court on the next occasion. Typically, this involves the Judge making Orders for you to:-

1. File a Response, setting out the Orders you seek;

2. File an Affidavit, setting out your evidence in relation to your relationship with your former spouse;

3. File a Notice of Risk (if it relates to a parenting matter), setting out any risks you say are posed to the children in their current circumstances;

4. Attend Court on the next occasion the matter is listed.

The Courts have to make sure there have been adequate opportunities afforded to you to appear and participate in their case. The onus is on the initiating party to:-

• prove they effected service to the responding party,
• to detail all aspects of the non-compliance
• 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 you do not attend Court or comply with one or more of the Orders the Judge makes, then the Judge will list your matter for an Undefended Hearing.

Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules”) states:-

1. Each party to an application set down for hearing on the first day before the Judge must attend in person and, if legally represented, with their legal representatives.

2. If a party does not attend on the first day before the Judge, the other party may seek the Orders sought in that party’s application by, if necessary, adducing evidence to establish an entitlement to those Orders in a manner ordered by the Court.

If you do not attend Court on the day the matter is listed for Undefended Hearing, Rule 16.07 allows the Judge to hear all the evidence in your matter from your former spouse and make a decision based on their evidence alone.

Rule 16.07 means that the Judge will definitely hear the matter without any input from you. The Judge has the discretion to adjourn the proceedings to allow you further time to file material or attend Court. However, when considering whether they should adjourn the matter or hear the matter undefended, the Judge has to consider the impact of an adjournment on the parties and/or the children involved in the proceedings.

If a 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 the case as follows:-

• In property matters this includes 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.
• In parenting matters this includes evidence in relation to the relationship with your former spouse and the time and care arrangements for the children.

In the matter of Jarrah & Fadel [2014] FamCAFC 14, in which the Full Court considered whether it was appropriate to adjourn parenting proceedings. The Full Court concluded that the predominant consideration in respect of an adjournment application is the best interests of the children. This meant that if the Judge considers that it is in the best interests of the children to proceed with the matter undefended or there would be an undue or unfair delay or cost to the other party to adjourn the proceedings, the Judge will not adjourn the proceedings.

Repeatedly ignoring your partner’s requests or failing to provide disclosure can significantly increase costs and may result in the Court making a cost order against you. This means you would be required to pay your partner’s legal fees in addition to any fees you have incurred yourself.

While there is some cost involved, it is important to see a lawyer when you are served with Court documents so you can obtain advice about the best way to participate in the proceedings and ensure the Judge can consider your evidence and views when making Orders.

Should you wish to discuss this with one of our Family Law Team please contact Solari and Stock Miranda on 8525 2700 or click here to request an appointment.

Article written by Nikita Ward.
Photo by Saúl Bucio on Unsplash