PLAINTIFF SEEKS FOR HEARING ON AN UNDEFENDED BASIS IN AN ALTERATION OF PROPERTY INTEREST CASE
Aldana & Redstone [2020] FCCA 3368 (3 December 2020)
This is an alteration of property interest proceedings between the parts where the applicant seeks to proceed with the case on an undefended basis after the respondent fails to comply with court orders.
Facts:
These are proceedings for the alteration of property interests arising out of a de facto relationship between the applicant-wife, Ms Aldana, and respondent-husband, Mr Redstone. The matter, significantly, was commenced by the wife on 3 October 2017, more than three years ago.
This matter was from a directions hearing on 24 September 2020 for a compliance check for allocation of a final hearing date. Detailed orders were made without any objection, with both parties legally represented on 24 September 2020. However, The husband has not complied. The wife is ready for a final hearing. The husband seeks further time for compliance but no affidavit has been filed by the husband or his solicitors as to the failure to comply.
The wife says the husband has not adequately explained his failure to comply, but he has a reason to delay the hearing, as he occupies the house, which is the sole major asset. She has spent more than $140,000 on the proceedings, as disclosed in her submissions. She says that it would be unjust to require further delay of the proceedings, even if an order was made for costs thrown away to be paid forthwith, particularly given that as the court is in the process of allocating its 2021 hearing dates adjourning the proceedings is likely to not be heard until 2022, and it would be approaching five years old.
Issue: Should the hearing proceed on an undefended basis?
Law:
- Family Law Act 1975 S.90SM
Analysis:
If this matter is not allocated soon, when there are other urgent matters, including urgent children’s matters which have to be weighed in the mix, then the likelihood is that the matter will not be heard until 2022.
In the court’s view, the husband today bears the legal and evidentiary onus to establish why, given the failure to comply with consent orders and given the age of proceedings, and taking into account not only the rights of the wife, but also the state of the lists, and the fact that the inclusion of this matter today meant that another matter was not included, there should be an undefended hearing.
When a case has been on foot for three years, the court does not consider that the husband has come anywhere near meeting either the evidentiary or the legal onus required to satisfy the court that there is an appropriate explanation for what has occurred.
Conclusion: The court is satisfied that the only just order it can enter is an order for the matter to proceed to a final hearing on an undefended basis.
