Family Law Parenting Proceedings

Family Law Parenting Proceedings

do i have to attend a parenting proceeding family lawyer parramatta

What happens if I do not attend my Family Law parenting proceedings?

It can be both confusing and intimidating to be served with court documents from your ex-partner seeking parenting orders in relation to your children. This can particularly be the case if you don’t get on well with your ex-partner and you don’t have the money to hire a lawyer to represent you. It can be tempting to either ignore the documents and fail to attend court or fail to file any documents in the proceedings.

If you fail to attend court or file documents, this does not mean that a Judge cannot make Orders about 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 in relation to your children;
  2. File an Affidavit, setting out your evidence in relation to your relationship with your ex-partner and your time with and care of your children;
  3. File a Notice of Risk, 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 Judge may give you multiple opportunities to file your documents and attend court or they may only give you one chance.

If you do not 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 ex-partner and make a decision based on their evidence alone.

Rule 16.07 does mean 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 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, Ainsley-Wallace J referred to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, in which the majority of the High Court said:

… delay and costs are undesirable and that delay has a deleterious effect not only upon the party to the proceedings in question but to other litigants. … It would impact on other litigants seeking a resolution of their cases.

Ainsley-Wallace J also noted that:

… The interests of justice are not the husband’s sole preserve. Delays in the resolution of the parenting proceedings have, no doubt placed stress and anxiety on the wife and perhaps caused her to incur costs. The children are represented and an Independent Children’s Lawyer has been appointed who has briefed, at cost to the taxpayers, Counsel.

The Full Court concluded that the predominant consideration in respect of an adjournment application is the best interests of the children.

This means 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.

While there is some cost involved, it is important to see a lawyer when you are served with court documents in relation to parenting matters, 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 in relation to your children.

 

Author: Emma Nichelsen, Lawyer, Sarah Bevan Family Lawyers

 

 

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