PRESENTING A CASE AT AN

PRESENTING A CASE AT AN UNDEFENDED HEARING BY FEDERAL MAGISTRATE DAVID HALLIGAN 22 JUNE 2011 A PAPER FOR THE 2011 FUNDAMENTALS OF FAMILY LAW SEMINAR SERIES, PARRAMATTA 1

Introduction 1. Paradoxically, an undefended hearing can be more difficult to conduct in some respects than a defended hearing. That is because there are issues for practitioners in an undefended hearing that do not usually arise in a defended hearing. Those issues usually concern procedural fairness and the need to prove all necessary facts in the absence of an opposing party to admit non-controversial facts. Presenting your client s case 2. The key to presenting a matter for undefended determination, as with presenting any matter, is timely and effective preparation. It is suggested that effective preparation entails- a) Ensuring that you can prove procedural fairness has been afforded to the other party; b) Ensuring that the evidence necessary to prove the facts on which your client s case rests has been filed or is available to be tendered at the hearing; c) Critically reviewing your client s case to ensure the orders sought in the application or response are still appropriate and accord with your instructions, and to identify weaknesses in your client s case that the Bench may raise with you and taking instructions on those issues from your client; and d) Preparing a Case Outline. 3. I will deal with each in turn. Procedural fairness 4. Procedural fairness requires that the other party knows the case against them and is given an appropriate opportunity to be heard. That means a party proceeding undefended must be able to prove by admissible evidence that the other party has been properly served with the documents to be relied on at the hearing and has been given adequate notice of the hearing date, time and place. 2

5. If acting for an applicant, unless the court has unconditionally dispensed with service, you need an affidavit proving service, in the manner prescribed by the rules 1 or by any order for substituted service, of the initiating application or of any amended initiating application and of all affidavit evidence being relied on, other than the affidavits of service. You also need an affidavit proving that notice has been given to the respondent of the hearing date, if different to the date on the application or amended application when served, in the manner required by the rules or any order of the court. 6. If acting for a respondent, you still need to prove procedural fairness. You need to prove service on the applicant in accordance with the rules or any order of the court of the documents you will rely on (a response and affidavit evidence in support) and of notice of the hearing date. 7. If the other party was present in court when the undefended hearing date was fixed, you simply need do no more than refer the court to that fact, provided the other party s appearance was recorded on the court record. If not so recorded, and you or your client were present when the other party was present, you may need to seek leave to adduce oral evidence, from your client or yourself, or you may need to ask for the matter to be stood in the list so you can prepare an affidavit to prove the fact. 8. Practitioners need to pay particular attention to time limits fixed by the rules or any order of the court for service of documents or giving notice of the hearing date. If any time limit was not complied with, consider whether there are grounds on which you may apply to dispense with the particular time requirement or to deem the service actually effected sufficient service. If so, ensure you include in the affidavits filed and relied on any evidence on which you wish to rely to support such an application. Necessary evidence 9. When preparing for an undefended hearing, keep in mind that there will be no-one present on the other side to admit any facts. All the 1 See Federal Magistrates Court Rules 2001 (FMCR), Part 6, Family Law Rules 2004 (FLR), Ch.7. 3

facts necessary to prove your client s case must be proved by admissible evidence. 10. What follows assumes evidence as to procedural fairness has been filed. Property matters 11. When preparing for an undefended property settlement hearing, keep clearly in mind the 4 step process the court must follow in determining a property settlement application, that is- a) The identification and valuation of all the parties assets, liabilities and resources at the date of the hearing; b) The identification and assessment of the parties contributions under s.79(4)(a), (b) and (c) and a consequent determination of a contribution based entitlement of the parties, usually expressed as a percentage of the net value of the property of the parties, or, where there is more than one property pool (such as where a superannuation splitting order is sought), a percentage of each property pool; c) The identification and assessment of the relevant other factors under s.79(4)(d) (g), including therefore s.75(2), and determination of the adjustment (if any) that should be made to the parties contribution based entitlement, usually but not necessarily expressed as a percentage adjustment; and d) Consideration of the overall effect of those findings and the determination of what orders will best achieve a just and equitable outcome having regard to the preceding 3 steps. 2 12. Therefore, ensure you have admissible evidence to prove the following- 2 See, for example, Hickey & Hickey, [2003] FamCA 395 at [39], (2003) 30 Fam LR 355, (2003) FLC 93-143. 4

a) The value of all the property of the parties, the value of any superannuation interests of the parties 3, and the amount presently outstanding in relation to each party s debts; b) The contributions within s.79(4)(a), (b) and (c) relied on by your client; c) Facts going to any other relevant consideration (that is, any of the considerations under s.79(4)(d)-(g) and s.75(2) that are relevant); and d) Any other facts to show the orders sought are just and equitable. 13. Remember that valuation of property (other than superannuation) requires expert opinion evidence. A market appraisal is not admissible expert opinion evidence unless there is evidence of the training, study or experience of the author of the appraisal sufficient to qualify him or her as competent to express an expert opinion as to the value of the relevant property, and of the other requirements for admissibility of the market appraisal as expert opinion evidence. 4 14. For a superannuation interest that is an accumulation interest in the growth phase, a recent member s statement will provide evidence of the value. If it is an interest of a kind where recourse must be had to a valuation formula, ensure you have a superannuation information form with the information required by the relevant formula, and provide the Bench with your calculations of the value, including the formula used and the values calculated for insertion in the formula. 5 Parenting matters 15. Ensure the affidavit evidence deals with all the relevant matters under s.60cc and, if your client seeks an equal shared parental responsibility order, all the relevant matters under s.65daa(5). 3 If a superannuation splitting order is being sought, each superannuation interest the subject of a proposed splitting order must be valued in accordance with s.90mt(2). 4 As to which, see the author s paper on the topic Expert Opinion Evidence in Family Law Proceedings, delivered in this CLE seminar series on 20 April 2011. 5 Where scheme specific valuation methods or factors are prescribed for calculating the value of an interest in a particular superannuation fund, the relevant formula may be found in the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003, at http://www.comlaw.gov.au/details/f2006c00224. 5

16. If it is part of your client s case that there has been child abuse or family violence, ensure the requisite Notice of Child Abuse or Family Violence has been filed and served, and that the affidavits contain evidence that is strictly admissible under the Evidence Act 1995 of specific facts sufficient to support a finding that there has been child abuse or family violence. 6 17. It is unwise to rely on s.69zt in an attempt to support a finding of child abuse or family violence. These are serious factual matters, s.140 of the Evidence Act (standard of proof) applies, and evidence admissible under s.69zt is admitted subject to such weight, if any, as the court considers it should have. The Full Court has emphasised the need for caution before a court makes findings of fact that involve significant criminal conduct based on evidence admissible under s.69zt. 7 18. The affidavits should give at least a broad history of each parties involvement in the care of the child. If there have been periods when your client has not been regularly involved in the child s life, the affidavits should explain the circumstances under which the occurred. 19. Ensure the affidavits clearly set out your client s proposals for the child s care when with your client under the proposed parenting orders. If your client has repartnered, or is relying on the support of another person in the care arrangements being proposed, file an affidavit of the relevant people that deals with their past involvement with the child, their current relationship with the child, and their proposed future involvement with the child. Subpoenas 20. If you need to issue subpoenas, ensure you do so well enough in advance of the date for the undefended hearing to afford yourself time to inspect the documents before the date for the undefended hearing. 6 Note the definitions of abuse and family violence, Family Law Act 1975, s.4(1), and hence the matters that must be proved to support a submission there has been child abuse or family violence.. 7 See Amador v Amador, [2009] FamCAFC 196 at [66], [90] and [93], (2009) 43 Fam LR 268, (2009) FLC. 6

Exhibits 21. If you intend tendering documents as exhibits at the hearing, have them ready to tender before coming into court. If seeking to tender parts of files produced under subpoena, inspect the subpoenaed documents in advance of the undefended hearing date, and flag the parts of the relevant files you seek to tender. Keep a record of each document from the subpoenaed files that you wish to tender, including who produced the file and how you have flagged the document, to assist you to identify the documents to be tendered from the subpoenaed files at the bar table. Limit the documents you seek to tender to what is necessary to prove your client s case. Critically reviewing your client s case Are the orders sought still appropriate? 22. Check that the orders set out in the application or response last filed and served still reflect what your client wants, and are otherwise appropriate. Check with your client whether there has been any significant change of circumstances that may affect the appropriateness of the orders sought. 23. Check whether the fact the other party is not participating in the proceedings affects the appropriateness of the orders sought. For example, in a parenting matter, if the other party not only has not participated, or ceased to participate, in the proceedings, but also has ceased to be involved with the children, are the orders previously sought as to that parent s time with the children still appropriate? In a property matter, does the failure of the other party to participate in the proceedings indicate that more extensive machinery provisions may be needed to ensure the orders can be carried into effect without the cooperation of the other party? Are there weaknesses in your client s case? 24. Do not assume that just because the matter is undefended your client s application will succeed. 7

In a parenting matter 25. In a parenting matter, the court must be satisfied that the orders to be made will best promote the child s best interests, and the court may raise other alternative care arrangements and request you address those in your submissions. 26. Critically review the matter well in advance to see if alternative parenting arrangements may be consistent with the evidence in your client s case, and if so, take instructions from your client about those alternatives to be ready to address them if raised by the Bench. 27. Also critically review your client s case for consistency between the evidence and the parenting proposals. For example, if your client is alleging significant and persistent family violence and is proposing equal shared parental responsibility, or if your client is alleging that the other parent has abused or neglected the child or otherwise lacks the ability to care for the child and is proposing block school holiday time with the other parent, you need to take clear instructions from your client to reconcile these prima facie inconsistent positions. In a property matter 28. In a property matter, the court must not make an order unless satisfied it is just and equitable to do so. 8 Critically review your client s case to identify possible weaknesses that may be raised by the bench, and seek instructions from your client in advance about your client s attitude to an alternative order that might address that weakness if you are unable to persuade the court to accept your client s primary position. Preparing a Case Outline 29. Prepare a Case Outline that includes- a) A list of documents relied on. Include the application or response on which you are moving the court and all the affidavits relied on in support of your client s case, including affidavits to prove procedural fairness to the other party; 8 Family Law Act 1975, s.79(2). 8

b) A chronology of significant facts; c) An outline of your submissions. In a parenting matter, address the relevant matters under s.60cc, s.61da, and, if seeking an order for equal shared parental responsibility, s.65daa. In a property matter, address the four steps referred to above, and within that structure, address the relevant matters under ss.79(4) and 75(2); d) In a property matter, a balance sheet of the current assets, liabilities and resources. If there needs to be more than one pool of assets and resources, for example if a superannuation splitting order is sought, include a balance sheet for each pool. Also include a balance sheet for each party showing the effect of the orders sought; e) A minute of the orders sought, with any departure from the orders as set out in the application or response relied on highlighted (for example, underlined). 30. If ordered to lodge a Case Outline, ensure you comply with any time limit for doing so. If not ordered to lodge one, file it or email it to the Associate to the judicial officer hearing the matter at least a few working days before the hearing. 9