MATENSON & MATENSON

In the matter of Matenson & Matenson, Judge Howard of the Federal Circuit Court of Australia considered the procedural arrangements for an undefended hearing. The dispute involved the father's involvement in the lives of the children, with the father seeking certain orders that would allow for his continued participation, though not seeking primary residence.

The primary legal issue before the court was the appropriate procedure for an undefended hearing, specifically whether parties should be permitted to give oral evidence or cross-examine witnesses. The court was required to determine how to balance the nature of an undefended hearing with the principles of procedural fairness and natural justice.

Judge Howard reasoned that while an undefended hearing typically means parties are not required to give oral evidence, the court retains discretion to set the parameters of the proceedings based on the specific circumstances. Citing previous decisions, the judge emphasised that this discretion must be exercised with regard to fairness. In this instance, the court determined that the matter should be set down for an undefended hearing on 19 February 2020, to proceed by way of submissions only. The father was granted leave to make submissions, and neither party would be permitted to cross-examine witnesses, partly because neither the Independent Children's Lawyer nor the mother wished to cross-examine the father, and section 102NA of the *Family Law Act 1975* (Cth) prevented the father from cross-examining the mother.

The court ordered that the matter be set down for an undefended hearing on 19 February 2020, at which time it would proceed by submissions only, with no oral testimony or cross-examination. Each party was permitted to rely on a written outline of submissions and was required to file and serve a case summary document by 12 February 2020.