Undefended property proceedings and legal principles

Undefended property proceedings and legal principles

Jefferson & Manley

The nature of undefended property proceedings

35. It is a significant thing for proceedings to be determined without the input of one of the parties. The court had an obligation to ensure that the parties to proceedings before it have an opportunity to participate in those proceedings.
36. The irony of this case is that Mr Manley has participated in these proceedings to some degree. He has regularly attended at court. However, although I accept he is interested in their outcome, he has done little of a practical nature to advance his cause. This is the same in respect of the proceedings relating both to X and Y, as well as to the division of property.
37. Before a person can be adversely affected by judicial order, he or she must be afforded an adequate opportunity to be heard.^[2] I am satisfied that Mr Manley has been given an adequate opportunity to appear in these proceedings and put his position before the court through the filing of appropriate documents.
38. On the other hand, Ms Jefferson is also entitled to have her application for settlement of de facto property matters, determined within a reasonable period of time, pursuant to applicable principles of law, notwithstanding the fact that Mr Manley has not availed himself of the opportunity to put his position in a formal manner.
39. Order 13.1A of the Federal Circuit Court Rules 2001 deals with the court’s authority to enter judgment against a respondent if that respondent defaults in complying with a court order or fails to prosecute any proceedings with due diligence.
40. Pursuant to Rule 13.03A(2) a respondent is in default if, amongst other things, he or she has failed to:
    • Comply with an order of the court in the proceedings;
    • Produce a document as required; or
    • Defend the proceedings with due diligence.
41. I am satisfied that Mr Manley has failed to comply with relevant orders of the court. As such, he has not defended the proceedings with due diligence. In these circumstances, pursuant to the provisions of Rule 13.03B(2)(d), Ms Jefferson is entitled to judgment in default.

The legal principles applicable

42. The applicant is not entitled, as of right, to the orders which she seeks. Rather, the onus remains on her to establish to the court that the orders which she seeks, are just and equitable, according to law.
43. In this context, the wife must lead sufficient evidence to establish to the court, that the orders which she seeks are just and equitable ones. Otherwise, the court must impose the result in the case which it considers fair, according to the law and the evidence available to it.

Conclusions

101. In this case, where it not for the husband’s legal interest in the Property F property, in my view, it would be neither necessary nor just and equitable for the court to make any order altering the parties’ respective property interests arising in the case.
102. However, the fact of the husband’s interests in the property requires that a property order be made. The overall nature of this order depends on what is just and equitable in all the circumstances of the case concerned. As the High Court indicated in Stanford:“The expression ‘just and equitable’ is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.” ^[9]
103. In my view, given the overwhelming financial contributions made by Mr & Mrs Jefferson Senior in this case which resulted in the acquisition of all the relevant assets the only just and equitable outcome in the case is the one proposed by the wife.
104. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.