Parsons and Prendergast (No. 2)

The Family Court of Australia, at Melbourne, heard an application by the wife, Ms Parsons, that her Amended Form 1A Response proceed on an undefended basis. The proceedings concerned the welfare of the parties' seven-year-old daughter and also involved property settlement matters. The husband, Mr Prendergast, had failed to comply with earlier court orders requiring the filing of his affidavit of evidence-in-chief and financial statement by a specified due date.

The primary legal issue before the court was whether to grant the wife's application to proceed on an undefended basis, given the husband's non-compliance with court orders. A secondary issue arose concerning the admissibility and potential striking out of significant portions of the husband's affidavits, which were alleged to contain inadmissible, irrelevant, and argumentative material, particularly in relation to the child welfare issues. The court was also required to consider the husband's application to have the judge recuse himself from the proceedings.

The court reasoned that while the husband's non-compliance with filing deadlines was a serious matter, the affidavits had now been filed, albeit late. The court noted that Rule 1.12 of the Family Law Rules 2004 permitted dispensing with compliance and that Rule 16.04 encouraged expeditious conduct of proceedings. The court found that it had a discretion to receive the husband's documents. However, the court also identified substantial issues with the content of the husband's affidavits, particularly under Rule 15.13, and indicated an intention to hear submissions on striking out material. The court ultimately dismissed the wife's application to proceed on an undefended basis, electing instead to deal with a strike-out application concerning the husband's affidavits. The court also indicated it would hear the husband's application for recusal.

The court ordered that the wife's oral application that her response proceed on an undefended basis be dismissed. The court directed that its extempore judgment be transcribed and made available to the parties.