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Proceeding on an “undefended basis” Family Court property proceedings

It is undeniably difficult when a party (responding party) fails to appear or file the necessary court documents in family court proceedings. If this is the case, the initiating party may seek leave from the Court to proceed on an undefended basis.

The Court is unlikely to grant a party the right to proceed on an undefended basis unless there have been several opportunities given to the other party to appear and put their case forward. This means that the initiating party has the obligation to prove that service has been effected to the responding party.

If non-compliance persists, the Court may entertain an application to proceed on an undefended basis.

The Court will hear the initiating party’s submission to the Court on what is necessary finalise the property dispute between the parties.   

If the Court has not made an Order for a party to proceed on an undefended basis, the party seeking to invoke such an application will need to file a “Form 2-Application in a Case” with a supporting affidavit detailing the following issues:

    1. Non-compliance with Court Orders;
    2. Severe lack of communication by the responding party;
    3. Evidence, or proof of service/ communication with the responding party;
    4. Persistent failure by the responding party to file responding documents, or failure to attend to Court proceedings.

Being granted the right (“leave”) to proceed on an undefended basis requires the initiating party to file the necessary court documents, including but not limited to Trial Affidavit and Papers for the Judge.

Even if a party has been granted the right to proceed on an undefended basis, it does not necessarily mean that they will be able to obtain all Orders that they seek. In property proceedings, the Court will consider matters pertaining to section 79 of the Family Law Act.

The party with leave to proceed on an undefended basis should address the following issues in their trial affidavit:

      1. Identify and value the property, liabilities and financial resources of the parties- preferably with an Asset and Liability Schedule;
      2. Identify the contributions of the parties, and express them in percentage terms of the net value of the property;
      3. Identity future and financial needs of the parties;
      4. Address the Court on why the percentage split is “just and equitable” in all circumstances”

If the Trial Affidavit and the Papers for the Judge addresses all of these issues, the Court may deal with the matters “on papers”.

It is important to note that the duty to make full disclosure is imperative even with the leave to proceed on an undefended basis. This means that the initiating party should:

  1. Make the necessary enquiry with the responding party to identify the assets and liabilities of the parties. Failing this, prove that an effort has been made to make these enquiries.
  2. Provide the Court with evidence that identifies the assets and liabilities in order for the Court to make an Order.

If a Superannuation Split is sought by way of an Order, we strongly recommend conferral with the relevant superannuation fund. The superannuation fund should be given sufficient notice, and consent to the Orders being made. This should be done at least one calendar month prior to the Undefended Hearing.

If you require our assistance, please do not hesitate to contact our experienced family lawyers in Perth at WN Legal.

2 Responses

  1. Hi Wahdan,

    Ultimately, when the Court is considering an application to proceed on an undefended basis, the Court needs to identify the parties’ asset and liability. After that, they will consider
    how the asset(s) need to be separated in accordance with the Applicant’s wishes (if leave to proceed is granted).

    A party cannot just ask for an application to proceed on an undefended basis if they have not satisfied their obligations under the Family Law Rules (link attached): http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_reg/flr2004163/sch1.html

    With leave to proceed on an undefended basis, you have to prove attempts to communicate and address issues pertaining to disclosure.

    It is also important to notify the opposing party/ Respondent of the Applicant’s wishes to proceed on an undefended basis if non-compliance persists (Not responding to pre-action procedure).

    Thank you for your queries.

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