Wife Opposes Husband's Application to Adjourn Undefended Hearing
Averill & Averill [2021] FCCA 1538 (7 July 2021)
The parties who previously separated sought the Court for property settlement orders. However, the Husband was unable to attend the proceedings allegedly due to mental health issues. The Husband applied to adjourn the undefended hearing but the Wife opposed such application.
Facts:
The parties commenced cohabitation in about 2008. They married in 2010, and separated under the one roof on 2 December 2018. Since the matter proceeded on an undefended basis, the Court only had recourse to the evidence of the wife in relation to this timeline. The wife’s evidence is that the children live with her and spend five nights per fortnight with their father. Ms Snelling, the Husband's counsel submitted that the Court ought to accede to the husband's Application to adjourn the undefended hearing since the Husband suffered from mental ill health issues consequent upon the breakdown of the marital relationship that have prevented him from being able to ‘face’ the parties’ separation and the existence of the property proceedings. He was also unable to file court documents as directed due to his alleged incapacity to cooperate with the proceedings. The Wife opposed the Husband's application due how it would be prejudicial to her is she were to incur more legal costs as well as emotional toll.
Issue:
Whether or not the Court should set aside the Husband's Application.
Applicable law:
Family Law Act 1975 (Cth), ss.75, 79 - provides what the Court, in exercising jurisdiction, shall take into consideration in relation to spousal maintenance as well as in property settlement proceedings.
Talbot & Talbot [2015] FamCAFC 132 - held that procedural fairness requires that the party against whom the proceedings may proceed undefended must be given a proper opportunity to participate in the proceedings.
Analysis:
Dr K, the Husband's doctor specifically excludes any diagnosis of Major Depression even at the height of the husband’s mental ill-health. He specifically excludes the possibility that the husband was experiencing depressive or anxiety symptoms at the time of his absence at the hearings. Dr K's evidence does not support the husband’s assertion in his evidence that he was incapable of taking legal advice provided to him, that he was in denial that the matter was listed for undefended hearing, or that he was incapable of being able to give instructions to a solicitor.
Conclusion:
The Court ordered to discharge Order 1 made on 10 November 2020. The Court declares the specified percentage of all splittable payments made to the Applicant Wife as required by section 90XT(1)(b) of the Act out of the interest held by the Respondent Husband in Super Fund B is 73.92%. Whenever a splittable payment within the meaning of section 90XE of the Act becomes payable to or on behalf of the Respondent Husband from his interest in Super Fund B, the Applicant Wife is entitled to be paid 73.92% of the splittable payment and there shall be a corresponding reduction in the amount the Respondent Husband would be entitled to receive but for these Orders.
