When one party fails to respond to family court proceedings in Australia, the court may proceed with what is known as an undefended hearing. This situation can arise in matters involving parenting orders, divorce, or property settlements.
It often places the responding party at a significant disadvantage as the court will make a decision on the evidence available to them by the applicant.
This article explains, in detail what an undefended hearing is, how it occurs, what the consequences might be, and the critical steps you can take if you're facing one.
At Unified Lawyers, our experienced family law team in Australia frequently assists clients in navigating complex situations involving court proceedings—especially those who have missed deadlines or are unsure how to proceed. We are committed to protecting your rights and helping you make informed decisions during what is often a stressful time.
If you've recently received court documents and missed a deadline to respond, or if you're worried about someone else in this position, it's important to understand that it's not too late.
There are still legal options available, and timely legal advice can make a significant difference in the outcome of your case.
What is an Undefended Hearing?
Imagine being served with legal papers about your children, your home, or your finances—some of the most personal parts of your life—and not knowing what to do next.
Maybe you're overwhelmed, struggling to make sense of the documents, or simply caught up in the chaos of everyday life. You're not alone.
These situations are more common than people think, and missing a deadline doesn't mean you don't care—it often means you didn't get the right help in time.
But here's what's important to understand :
The court doesn't pause because things got hard. If a response isn't filed in time, the court may go ahead without you. That's what we call an undefended hearing.
And while it may sound technical, the impact can be anything but. Parenting decisions. Property orders. Financial arrangements. All decided based solely on the other party's version of events. That's why knowing your rights and acting early can make all the difference.
Under the Family Law Act 1975 and the Federal Circuit and Family Court of Australia (FCFCOA) Rules 2021, judges have the power to hear and decide the case even if the respondent isn't in the room.
These hearings are often guided by undefended hearing family law rules and undefended hearing family court rules as set out in the legislation and court guidelines.
The result?
Legally binding orders that can shape your future, made without your side being heard.
Now, don't confuse this with a "default judgment" you might see in civil cases.
In family law, the stakes are personal—kids, homes, assets. That means the court still has to look closely at the applicant's evidence and make sure the outcome is fair and in line with legal standards—especially when children are involved or big financial decisions are on the table.
But here's the kicker :
Family courts run on efficiency.
If you're not ready or haven't filed your documents, the court likely won't wait. These matters move forward, sometimes fast.
So if you're sitting on paperwork or feeling unsure, now's the time to act—not later.
What Legal Framework Applies to Undefended Hearings?
In Australia, undefended hearings are generally managed by the Federal Circuit and Family Court of Australia.
However, it's important to note that Western Australia has its own Family Court and separate procedural requirements.
In all jurisdictions, the court follows established procedures—often referred to as undefended hearing FCFCOA rules—to determine how matters proceed in the absence of a formal response.
Common Situations That Lead to an Undefended Hearing
So, how do cases end up in court without hearing both sides? Here's the reality: there are a bunch of ways someone might get sidelined in a family law matter—and most of them are more common than you'd think.
- Missed deadlines : The top culprit. Respondents might not realise how fast timelines move in family court. Maybe they didn't understand the urgency, got bogged down by legal jargon, or simply underestimated the stakes. By the time they act, the hearing's already set.
- Service slip-ups : If court documents aren't served properly—think wrong address, no confirmation, or unclear delivery—the person on the receiving end might have no clue they're expected in court. And yes, the case can still proceed without them.
- Refusing to engage : Some people intentionally avoid the process. Maybe they're overwhelmed, in denial, or hoping ignoring it will make it disappear (spoiler: it won't). Others might worry that showing up means they're giving in. It doesn't.
- Not knowing what to do : If you've never dealt with family court before, it's easy to get lost. Many respondents don't have legal advice, don't know what documents to file, or even where to start. That confusion can cost them dearly.
- Barriers beyond their control : From mental health struggles to language issues, some people face extra hurdles. They might not understand the paperwork, feel too anxious to attend court, or lack the support needed to engage properly.
The takeaway?
Even if someone doesn't show up or respond, it's not always a sign of disinterest.
Often, it's a mix of confusion, stress, and missed opportunities. That's why getting legal advice early is so important.
A good family lawyer can step in quickly, explain what needs to happen, and help slow things down long enough to get you back on track.
How Judgments Are Made in the Absence of a Defence
When a case goes ahead without the other side—what we call an undefended hearing—the judge doesn't press pause or wait for a balanced debate.
Instead, they work with what's in front of them :
The documents, affidavits, and arguments filed by the applicant. There's no cross-examination.
No one there to push back, raise questions, or offer another version of the facts. And that can lead to some big consequences.
The court can issue parenting orders that reshape a parent's relationship with their children—sometimes dramatically—based entirely on one person's perspective.
It can also push through property settlements that divide homes, savings, or superannuation without a full picture, even if key details are missing or skewed.
And then there's the money hit : cost orders can land squarely on the absent party, leaving them to foot the legal bill for both sides.
None of this is hypothetical.
These outcomes are real, and they can be life-changing.
Once those orders are in place, reversing them is far from simple. That's why responding to family court documents—on time and with good legal advice—isn't just smart.
It's essential.
How Can Someone Prepare for an Undefended Hearing?
Just because your matter's been marked as an undefended hearing doesn't mean the outcome is set in stone.
You may still have the chance to step in and be heard—but you'll need to act fast and take the right steps.
If you've been listed for an undefended hearing, don't panic—there are still steps you can take to be heard.
Here's a clear plan :
- Call a family lawyer immediately. Don't try to navigate this alone. A skilled lawyer will help you understand where things stand, quickly draft the necessary documents, and can even request an adjournment so you have more time to prepare.
- Show up to court. Even if you haven't filed your paperwork yet, turning up shows the judge you're serious. Bring every document you've received—even if it's only the original court notice. Be respectful and ready to explain why you didn't respond earlier.
- File an affidavit before the hearing, if possible. This is your opportunity to share your side of the story in writing. Include supporting details—parenting plans, financial records, a timeline of events—anything that adds context or clarifies your position.
- Be honest about what went wrong. Maybe you didn't understand the paperwork, missed the deadline by accident, or were dealing with health or personal challenges. If you're upfront and show a genuine intent to participate, the court may still give you a chance.
Remember : it's better to step in late than not at all. Arrive prepared, ask for help, and show the court you're ready to move forward. You might just change the entire outcome.
Legal Consequences of an Undefended Hearing
Let's be clear: an undefended hearing isn't just a missed appointment—it's a legal event that can change your life.
If you don't show up or fail to file your paperwork, the court can go ahead and make decisions without your say.
And those decisions?
They're not easy to undo.
- Final and binding court orders : These aren't temporary fixes. Parenting plans, property settlements, and financial decisions made during an undefended hearing lock in fast and can shape your family's future for years.
- No voice in your own life : When you're not in the room, you don't get to challenge the other party's claims. That means orders about your children, your house, or your finances can be made based solely on someone else's version of the story.
- Footing the bill : The court can slap you with a cost order, meaning you might be forced to pay for the other party's legal fees on top of everything else.
- Appeals aren't easy : Think you'll just fix it later? Not so fast. Appealing a court order takes time, money, and a strong legal argument. Unless there's a major procedural slip-up or injustice, getting a second chance is no sure thing.
Here's the truly painful reality—some parents find themselves suddenly cut off from their children, or completely left out of decisions about their property and finances.
Not because they didn't care, but because they didn't understand how urgent it was to respond, or didn't have the right support when they needed it most.
It's not about neglect—it's about being overwhelmed, scared, or stuck.
If you're in this situation, know this: you're not alone. And more importantly, it's not too late. Feeling anxious is normal, especially when the stakes are this high.
But the next step you take could change everything.
Speaking to a family lawyer who understands how these situations unfold—and how to turn them around—can make all the difference.
There may be a path forward to challenge or even undo what's been decided.
The key is to act quickly.
With the right guidance, there's still time to regain your voice, defend your rights, and protect what matters most to you and your family.
Can You Challenge the Outcome of an Undefended Hearing?
Missed your hearing or let a court deadline slip past you?
That doesn't mean you're out of options.
In fact, the law gives you a few solid ways to challenge decisions made during an undefended hearing—but you'll need to move fast.
Here are your main legal options if you want to challenge the outcome :
1. Appeal to a higher court :
Think the court applied the law incorrectly or missed a crucial detail? You may have grounds to appeal.
This route allows you to argue that the judge made a legal mistake that affected the outcome. But tread carefully—there are tight deadlines (usually 28 days from the date of the order) and strict procedural rules.
You'll need strong legal arguments, well-prepared documents, and experienced legal support to back you up.
2. Apply to set aside the orders
If you weren't properly served with court documents or something happened that made the original hearing unfair, you can ask the court to cancel the orders.
This is done through a formal application under section 79A of the Family Law Act 1975. It's designed for serious situations where procedural fairness wasn't upheld—like if you didn't know about the hearing or weren't given a fair chance to respond.
3. Apply to vary or discharge the orders
Sometimes life changes dramatically—think job loss, major illness, a child's needs evolving, or unexpected financial hardship.
If your circumstances have shifted substantially since the court made its decision, you may be able to apply to change (vary) or cancel (discharge) the original orders. This option is often used in parenting matters where flexibility is essential.
Keep in mind : none of these are simple fixes. Each path comes with its own set of legal requirements, forms, deadlines, and paperwork. And if anything is missed or done incorrectly, your chance to change the outcome could be lost.
That's why expert legal advice isn't just helpful—it's essential. A family law specialist can assess your situation, explain your options in plain English, and give you the best possible shot at turning things around.
What to Expect During an Undefended Hearing
Undefended hearings can feel like walking into the unknown—quick, formal, and high-stakes.
If you've never been in a courtroom before or have no clue what to expect, here's a walkthrough to take the edge off.
These hearings usually take place in person or by video conference, depending on the urgency of the matter and your local court's setup.
The applicant (or their lawyer) will be present, walking the judge through their side of the story.
If you're the respondent and haven't filed anything yet, you might not be expected—though you're still allowed to show up and ask to speak.
Things tend to move at pace. There's no back-and-forth debate because there's no official defence on the record.
The judge reads the applicant's affidavit, considers their evidence, and makes decisions based solely on what's in front of them.
If you attend, you might get a quick chance to explain your absence or request time to prepare your case properly.
Here's what might happen next :
- The judge could make parenting or property orders right then and there.
- They might list the matter for another day to allow more time for documents.
- Or, if you've shown genuine effort and provided a good explanation, they might adjourn the hearing to give you a fair shot.
Most undefended hearings are over in less than an hour—but the outcomes can last for years.
That's why how you present yourself on the day matters.
Show up early. Dress neatly. Turn off your phone. Speak clearly and respectfully.
And most importantly—bring any paperwork you have, even if it's incomplete.
Knowing what's likely to happen takes the sting out of the experience—and might just give you the confidence to step up and be heard.
FAQ's
1. What happens if I don't respond to a family court application?
Ignore a family court application, and the system won't wait for you.
The court can press ahead without your input, and that's where things can spiral.
Without your side of the story, the judge may grant parenting orders that limit your time with your kids or settle property in ways that don't reflect your contributions.
It doesn't stop there—cost orders can follow, meaning you might also foot the legal bill for the other party. With nothing filed in your defence, the court usually accepts the applicant's version of events at face value.
Reversing these decisions later?
That's a steep uphill battle.
2. Can I attend an undefended hearing even if I didn't
respond?
Absolutely—and you should.
Turning up shows the court you're taking things seriously, even if you're behind on paperwork.
But be ready: the judge will want an explanation.
Maybe the documents didn't reach you in time. Maybe you misunderstood what needed to be filed.
Whatever the reason, clarity is key.
If your explanation holds water, the court might let you jump in, or even adjourn the matter to give you a fighting chance to catch up.
3. What is the difference between a defended and undefended
hearing?
In a defended hearing, both sides suit up with affidavits, evidence, and legal arguments.
It's a full contest—each party has their say, and the judge weighs it all up.
Undefended hearings, on the other hand, are a one-sided show. The applicant presents their version, and if you're not there, it's all the court hears.
No rebuttal. No context. No challenge.
It's quicker, sure—but also riskier, especially if the other party's claims don't paint the full picture.
4. Can I get a lawyer last-minute?
Yes—and if you're staring down a court date, it's the smartest move you can make.
Even with limited time, a seasoned family lawyer can help you prep affidavits, request adjournments, and guide you through the courtroom dance.
Don't go it alone if you don't have to—legal help can be the difference between damage control and disaster.
5. Is an undefended hearing the same in every state?
Mostly, yes. Family law is handled by the Federal Circuit and Family Court of Australia (FCFCOA) across the country.
The exception? Western Australia.
They run their own Family Court, which follows the same general principles but operates under its own rules and procedures.
If you're based there, make sure you're getting advice that fits WA's unique legal landscape.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
