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Running an UNDEFENDED Final Hearing under LAT rules...???

I have a Final Hearing under LAT rules scheduled for August.

Yesterday, I participated in a procedural hearing with the Docket Judge, ICL and the Mother solicitor.

The purpose of the conference was to assess whether or not the Parties had complied with previous orders to file affidavits in preparation for the hearing.

Neither myself or the Mother had filed affidavits. The Parties were then given another compliance date. I will have my affidavit file well before then.

The Mother's solicitor informed us that the Mother was very sick and had been in Hospital for several weeks. She further stated that she had know idea what was going on (with the Mother).

Just before the conference ended, the Mother's solicitor remarked, "If the Mother does not have her affidavit in by the next compliance date, the matter may need to continue on an UNDEFENDED basis"….

What should i make of this?

And how would I run a case an as SRL applicant on an undefended basis?

How would an LAT matter be conducted on an undefended basis?

How would I get subpeonaed material into evidence if I cant tender them while cross-examining the Mother?

4MYDAUGHTER

Cases related to undefended hearings

Cases of interest involving undefended hearings:

F and S - (2005) FLC ¶93-208

Family Court's citation: [2005] FamCA 44

Full Court of the Family Court of Australia at Brisbane

Judgment delivered 8 February 2005 http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FamCA/2005/44.html?query=title(f%20and%20s)

Family law – Practice and procedure – Reliance on unserved affidavit at undefended hearing – Children – Residence and contact – Final orders by trial Judge granting residence to wife made after husband apparently elected not to appear at the hearing – Affidavit filed on the morning of the hearing by child representative containing much material adverse to husband – Application of r 15.06 – Whether hearing should have been adjourned to allow husband to be present – Family Law Rules 2004 r 15.06.


Sandler  & Kerrington [2007] FamCA 479 (24 May 2007)

 http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FamCA/2007/479.html?query=title(sandler)
FAMILY LAW - APPEAL - FROM DECISION OF FEDERAL MAGISTRATE - CONTRAVENTION OF PARENTING ORDERS - VARIATION OF PRIMARY ORDER - Parenting orders made by trial Judge only nine months before contravention hearing - Those orders were that child live with mother and spend time with father - Numerous contravention applications before court - father alleging the mother had committed numerous, and ongoing, breaches of orders that child spend time with the father - alleged that the mother had also contravened various orders about specific matters relating to child - mother did not appear at contravention hearing and her solicitor was granted leave to withdraw - issues were raised as to the mother not being served by special service in relation to contravention applications - Coker FM suspended parenting orders - recovery order issued for Police to take possession of child and deliver into possession of father - it was argued on appeal that Coker FM erred as the father did not apply for a recovery order - Coker FM ordered that, until further order, child to live with father - on appeal, the appellant argued that Coker FM erred in finding on father's material that alleged contraventions proved on prima facie basis - on appeal, Counsel for mother argued that there was evidence before trial Judge that child would experience trauma if moved from residence with mother - Further, father was not proposing a change of residence for child as an interim order - procedural unfairness - failure to follow Rice and Asplund - appellant sought to adduce further evidence before the court relating to reasons for judgment of trial Judge and expert evidence that was before him - respondent also sought to put further evidence before court





FAMILY LAW RULES 2004 - RULE 15.05

Evidence in chief by affidavit

        (1)         Evidence in chief at a hearing or trial must be given by affidavit.


        (2)         Oral evidence may be adduced at a hearing or trial only if:


        (a)         a witness refuses to swear an affidavit; and


        (b)         notice to that effect has been given under subparagraph 15.07 (2) (b) (ii).


Note    This rule applies unless the court orders otherwise (see rule 1.12).



15.07 (2) (b) (ii).
  if the witness refuses to swear an affidavit -- a notice to that effect, setting out the name of the witness and a statement of the evidence sought to be adduced from the witness.


Note 1    The court may, by order, vary a requirement in this rule when the trial notice is issued.


Note 2    At the trial, a party may not refer to or rely on an affidavit filed in relation to an earlier application or hearing unless the court orders otherwise (see subrule 15.06 (3)).



What is done for you, let it be done, what you must do, be sure you do it, as the wise person does today that what the fool will do in three days - Buddha
This case does show even when the matter you have is uncontested, for it to be safe, you should take care to ensure some fairness is shown to the other party and total compliance with your requirements to properly inform the other party are made.

In this matter the new staus quo saved the father but it will be interesting to see if we can to conclusions to this matter.

It sounds like the father, like most of us fathers do not want to deprive the mother of "live with" status but ensure he has substantual time with his son. I wonder why the fathers applications were not for Contempt of the Court Orders as there was a contract signed with the Contact Centre.
I wonder why the fathers applications were not for Contempt of the Court Orders as there was a contract signed with the Contact Centre. said
  In contempt, one must tread carefully, contempt is  criminal not quasi criminal, and as such a difficult task to prove in the family courts, did the defendent intentionally mislead the court beyond reasonable doubt -where is the hard evidence? this does not look like a case of contempt, futhermore the contract was signed with the contact centre.

I hear you and ubtil the excuses of the mother are aired a proper determination can not be made. I was looking at the mother has admitted to knowledge of the Order and the requirements of the Order by the contract with the centre then gone out of her way not to continue until the Court took the child away, She would not even talk to her lawyer. Is such blantent behaviour of disobediance a demonstration of Contempt for the Courts ability and authority to make Orders for the Best Interests of a Child?
The Mother's lawyer has today filed a Notice of Ceasing to Act.

So things are getting interesting!

4MYDAUGHTER
4MD, I read into the Notice of Ceasing to Act (NCA) either a refusal of Legal Aid or a failure to comply with the solicitors requests for instructions. I think it looks good for you but please be careful. Still file and serve as if it was a trial. Serve on the mother at the address in the NCA. Prefer by reg'd post or personal. I have seen many parties in her situation turn up on the day of trial and beg for more time with a sad story or BS about not being served.  
Prepare your aff as if it is a full blown hearing. Deal with each part of s60CC which is relevant.
Finally, be prepared to file and serve an amended Aplication if the final Orders sought are substantially different. Normally you can go to trial with a minute of the Order you are seeking attached to your case outline, and it may differ from your initial Application or Response. Where it is going to be an undefended hearing or if the mother is SRL for the first time, best to give plenty of notice of the Orders sought at hearing if they are going to be any different.
When are you on?
Final Hearing next week.

My case outline is almost complete. Will be provided to the Associate Monday. Minutes of Orders attached.

4MYDAUGHTER
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