On 18 October 2024, the Federal Circuit and Family Court of Australia issued the Family Law Practice Direction: Defaulters’ List (Practice Direction) which will initially be piloted in the registry of the Sydney Courts.
It will ensure compliance with the relevant Federal Circuit and Family Court of Australia (Family Law) Rules 2021 and case management orders and directions in family law or child support proceedings. The Practice Direction is to be read together with the Family Law Act 1975 (Cth), Family Law Rules and the Central Practice Direction – Family Law Case Management. A similar Defaulters’ List case management mechanism is established and currently in use in the Central Practice Direction – Family Law Case Management.
Parties and lawyers’ duty
Parties to proceedings and their lawyers have a duty to resolve matters justly, efficiently and inexpensively as possible and must conduct the proceedings in a way that is consistent with the overarching purpose of the family law practice and procedure provisions.[1] Lawyers must in the conduct of proceedings take account of the duty imposed on the party and assist them to comply with the duty.[2] In assisting a party to fulfill the duty, lawyers may be required by the court to provide a party with an estimate of the duration and the likely costs of the proceedings.[3] The Court will expect the cost of each step, the necessity of proceedings, and the avoidance of unjustified use of court resources to be always kept in mind. The Defaulters’ List is established to support this purpose by referring parties who fail to comply with the Court Registrar’s orders or directions, to a judge for a hearing in the Defaulters’ List.
The importance of parties and their lawyers complying with the duty is evident in the discretion the court has to consider if compliance with the duty has been adhered to when deciding costs.[4] A lawyer who fails to comply with the duty may be ordered by the court to bear costs personally[5] without recovering costs from the client.[6] Defaulting parties and their lawyers should therefore be aware that if they fail to comply with the requirements of the rules and/or a case management order or direction the outcome could potentially be costly for both client and lawyer. Avoiding the Defaulters’ List will require effective cooperation and case management between lawyers and their clients.
Notable features of the Practice Direction to be aware of are as follows.
Default[7]
Subrule 10.26 (1) of the Family Law Rules provides how an applicant may be in default and includes if they fail to: comply with an order in the proceedings; file and serve a document under the Family Law Rules; produce a document required by Division 6.2.2. Instances when a respondent may be in default under Subrule 10.26(2) include if they fail to: give an address for service before the time for the respondent to give an address has expired; file a response before the time for the respondent to file a response has expired; comply with an order of the court in the proceeding.
Extension of time[8]
Applications for extensions of time will need to be obtained prospectively by applying before default occurs. Adjournment applications of a court event that are due to anticipated non-compliance with an order or direction would need to be made 14 days prior to hearing in the case of a final hearing; or within 2 business days of a court event, in the case of any other court event.
Defaulter to show cause[9]
A complying party will not have the burden to impose a penalty, rather the burden will be on the defaulting party who will have the onus of applying for relief from the requirements of a rule or order against them. The Court may consider several factors when assessing a defaulter’s application, including: interests of the parties in the proceedings and the administration of justice by the courts more generally; whether the application for relief has been made promptly; whether the failure to comply was intentional; and whether there is a good explanation for the failure.
Court’s powers on finding default[10]
The Court may make any orders, give any directions and specify any consequences for non-compliance with the order it thinks just, against a defaulting party, including: order the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the party; set aside a step taken on an order made; order that a step in the proceeding be taken within the time limited in the order.
Notice of potential summary dismissal or undefended hearing[11]
Subrule 10.22(3) of the Family Law Rules provides that the notice advising parties that the matter has been allocated to the Defaulters’ List will include notice that the matter may be summarily dismissed, judgement may be given in the absence of party or may proceed as an undefended hearing.
Vocare Law is well equipped to assist our clients with family law matters and case management and has a wealth of collective knowledge and over two decades experience providing insight and advice in this area. Please don’t hesitate to contact our office if you have any questions on family law. Contact us on 1300-VOC-LAW / 1300-862-529 or email: enquiry@vocarelaw.com.au
This article was written by Gail Olsson and Barry Klopper , Practice Leader – Family Law
Footnote
[1] S 96 (1), Family Law Act 1975 (Cth)
[2] Ibid, S 96 (2) (a) and (b)
[3] Ibid, S 96 (3) (a) and (b)
[4] Ibid, S 96 (4)
[5] Ibid, S 96 (5)
[6] Ibid, S 96(6)
[7] Clause 4.1 and 4.2, Federal Circuit and Family Court of Australia, Practice Direction/Family Law Practice Direction: Defaulters’ List, 18 October 2024
[8] Ibid, Clauses 4.4 and 4.5
[9] Ibid, Clauses 4.6 and 4.7
[10] Ibid, Clause 5
[11] Ibid, Clause 7
