WIFE SEEKS TO PROCEED ON AN UNDEFENDED BASIS DUE TO HUSBAND’S REPEATED FAILURE TO COMPLY WITH COURT ORDERS
Talgos & Kester [2020] FCCA 3047 (19 October 2020)
This case involves a proceeding for the alteration of property interests where the wife seeks to continue on an undefended basis due to the husband’s failure to comply with court orders and participate in the proceedings in any meaningful way.
Facts:
This proceeding was initially filed on 12 July 2019. The matter first came before the Court on 30 September 2019. At that time, orders were made by consent. On the first return date, Ms Bowen of Counsel appeared on behalf of the Applicant Wife (Applicant) and the Respondent Husband (Respondent) appeared in person.
At that time, consent orders were made that the Respondent file a response, an affidavit, and a financial statement within 28 days; and that the Respondent provide pursuant to various documents. That was to be done within at least three weeks prior to the Conciliation Conference. Those documents are extremely detailed in what was to be provided.
The first Conciliation Conference took place on 15 November 2019. The Applicant was again represented by Ms Bowen, on that occasion, there was no appearance by the Respondent. The Registrar ordered the Respondent to pay $2,070.00 in costs thrown away.
The next occasion, this matter came before the Court was by way of Final Hearing on 6 August 2020. On that occasion, both the Applicant and Respondent were self-represented. The Respondent had still not filed a response, an affidavit, or a financial statement that had been ordered 11 months earlier. Orders were made on that day, on 6 August 2020, relisting the matter for Final Hearing, being the second Final Hearing.
Issue: Should the proceeding proceed on an undefended basis?
Held:
This is the second trial date and the Respondent has still not filed an affidavit in support of his application, and the Respondent has still not filed a response. During the final hearing (August 6), the court was very clear with the Respondent that he had better get his house in order. He has not done so. So, this matter will be proceeding undefended.
After hearing the submissions from Counsel on behalf of the Applicant, the court is satisfied that, in circumstances where an order has been made that this proceeding proceed on an undefended basis; where the Respondent has failed to participate in these proceedings and has materially failed to provide discovery in any meaningful manner, the minute of proposed orders and the orders proposed by the Applicant are just and equitable in the circumstances.
Conclusion: The Applicant Wife is granted leave to proceed on an undefended basis.