VIC Respondent Didn't File Any Evidence-in-Chief - What to Do?

[Malissla]

My trial date in family court has been set but the respondent has not filed any evidence in chief. By order of the court, I can file for the matter to proceed undefended - am I better off filing for the matter to go ahead undefended or simply letting the matter go to the trial date and let the court deal with the respondent not filing any evidence?

I am not opposed to be filing for it to go undefended but I don't trust the Judge and I am concerned the Judge will simply give the respondent yet another opportunity to file. What is the best way forward?

 

[thatbloke]

What exactly does the order say?

 

[Malissla]

WHat EXACTLY does the order say?

The order says that if either parties does not comply with any of the orders then the one that has can immediately apply for it to proceed undefended.

I have seven weeks until trial starts. I am concerned that if I apply now for it to go ahead undefended then the Judge may take that opportunity to allow the respondent more time to file his evidence.

 

[thatbloke]

When was the actual filing deadline?

 

[Malissla]

When was the actual filing deadline?

It was June 20th, a week ago.

 

[thatbloke]

It was June 20th, a week ago.

Well you have nothing to lose by making the application have you? Have you written to the other side?

 

[Malissla]

Well you have nothing to lose by making the application have you? Have you written to the other side?

Actually I do, it may provide for an opportunity for the Judge to yet again give the Respondent another chance to file. Hence my original question.

 

[thatbloke]

Actually I do, it may provide for an opportunity for the Judge to yet again give the Respondent another chance to file. Hence my original question.

Erm, no! If you continue do nothing they can file at anytime from this second onwards. So what have you lost if you apply and they they get more time to file? They will be given the same time they now have because you are doing nothing...because...there is nothing in place to stop them filing when they like now, tomorrow, next week or in January 2061, is there?!

Are you under the impression that if they file in a week or two, you rock up on the day of the hearing and ask for it to be undefended because they filed late? That seems to be the impression am getting, and it is not accurate

An application to be heard undefended means just that.., an application. It does not mean rock up at court and expect it to happen because they file late. If you do not apply, they can file the day before if they can get away with it

 

[Malissla]

Erm, no! If you continue do nothing they can file at anytime from this second onwards. So what have you lost if you apply and they they get more time to file.. They will be given the same time they now have because you are doing nothing......because..... There is nothing in place to stop them filing when they like now, tomorrow, next week or in January 2061 is there??!!!!

Are you under the impression that if they file in a week or two you rock up on the day of the hearing and ask fir it to be undefended because they filed late? That seems to be the impression i am getting, and it is not accurate

An application to be heard undefended means just that.. an APPLICATION.....It does not mean rock up at court and expect it to happen because they file late. If you do not apply, they can file the day before if they can get away with it

Not really, they must seek leave of the court to file anything after the date stated. No, I am not under that impression, I do not believe they will file at all and in the event they do not file - in my view - they have no evidence before the court and therefore no case.

My original question related to if that would be better than me filing an application to go undefended - at which point he could simply ask for more time to file (and probably get it).

 

[thatbloke]

Be under whatever impression you like, I'm giving you cold hard accurate facts. You obviously have no experience whatsoever in knowing hardly anyone files on time but please do not take my word for it. Just continue to believe what you have written above and come back and tell me I was right when you find out I was right and you go into a defended hearing with someone who has filed late or not at all . ;-)

See ya