An ex parte application refers to an application made by one party to a court without the notice of the other party. This means that an ex parte applicant wants to seek a court order without giving the other party the opportunity to respond to the application.
These applications are usually made in urgent situations where immediate court intervention is necessary to protect a person's safety or interests. To be specific, ex parte applications are used in both family law and financial matters in Australia. Examples of situations where an ex parte application may be appropriate in family law matters include orders that:
- Prevent a child from being removed from Australia without consent;
- Seeks the return of a child who has been unlawfully taken or retained;
- Prevent family violence; or
- Preserve a property.
Whereas, financial matters may include orders that:
- Prevent the sale or transfer of assets such as property shares that await resolution of a dispute;
- Freeze bank accounts or other assets in order to prevent them from being dissipated or hidden;
- Disclose financial documents or information to ensure that all assets are properly disclosed.
These matters typically arise from property settlement disputes. Property settlement is a procedure that divides a separating or divorcing couple's assets and finances. Read on to know more information about an ex parte application.
Ex Parte Application Process for Child Custody
1. Initiating Application
The Federal Circuit and Family Court of Australia (FCFCOA) is responsible for the standard procedure for starting ex parte orders regarding child custody. Applicants must prepare and file an Initiating Application along with supporting evidence for their claims. Click here to read our article about frequently asked questions about Initiating Applications. The applicant must also include:
- An affidavit that contains the facts about their case (applicants may also address the urgency of their application in their affidavit); and
- A cover letter that outlines the nature of the application and the basis upon which an urgent listing is required. The letter should refer to specific sections of the affidavit based on the applicant's urgent application.
Note: The court has an out-of-hours service for applicants who are unable to file for an emergency ex parte order if the FCFCOA is closed. This is only for cases if there is a risk that a child may be taken out of the country before the next working day of the federal circuit court. If this is the case, applicants may call 1300 352 000. It is advisable that parties speak to family lawyers before taking this step.
2. Court Review
Depending on the urgency of the situation, the family court may hear the application immediately or at a later date. If the court decides to conduct an ex parte hearing immediately, the applicant will need to attend court and present their case. The court will usually address if the applicant has filed for an ex parte application. The court will review the contents of the applicant's affidavit such as:
- The nature and urgency of the damage or harm that could occur in the absence of an urgent order;
- What steps have been taken (if any) to notify the respondent or their lawyer (if applicable) of the intention to file the ex parte application;
- Details of the respondent's last known address;
- The reasons why seeking abridged service of the application on the respondent is not more appropriate (meaning an urgent hearing on short notice)
- Whether the order is likely to cause any hardship, danger, or prejudice to the respondent, a child, or a third party.
3. Check if the Matter Can Be Lodged in the Critical Incident List
The FCFCOA Critical Incident List is a specialised list for family law matters. This list was created to make immediate arrangements for children whose parents are unavailable for childcare responsibilities. To apply to have a matter heard on the Critical Incident List, the applicant must be:
- A non-parent caring for a child or children
- Unavailable to care for children due to death, critical injuries, or incarceration
- Applying for orders that grant them parental responsibility for children
- Caring for children who are not involved in existing final family law orders or state/territory child welfare orders that relate to the arrangements for the concerned child.
Note: Applicants who also want to seek protection from violent partners may seek an apprehended domestic violence order (ADVO). This is a type of restraining order that protects a domestic violence victim from his/her perpetrator.
4. Court Decision
The court will decide whether to grant the requested orders after reviewing the evidence in the ex parte application. If the court grants the order, they may draft temporary orders that may be changed or overturned after the party has responded to the application.
It is important to note that the process for filing an ex parte application may vary depending on the facts of the case. Hence, courts may or may not inform concerned respondents about an ex parte application.
What about financial matters where the main assets are either cash or non-traceable assets? Usually, the party with access to these assets has the ability to either hide or dispose of those assets. In certain circumstances, the Court has the authority to order third parties to take steps to protect the assets of the marriage's parties.
Whatever the case is, it's important for applicants to seek legal advice from a family lawyer. This ensures that their application is properly prepared and presented in court.
How Can Family Lawyers Help With An Ex Parte Application?
However complex the case is, family lawyers are experienced to deal with family law and financial matters. They also understand how to lodge various applications and necessary documents in family courts and government agencies.
JB Solicitors can aid in ex parte proceedings and applications for clients who are in urgent situations. We believe that it's important to prioritise the safety of children in family law matters. Additionally, we can also aid in financial matters for clients who want to secure assets and finances that are rightfully theirs.
But what if people don't want to go through costly and lengthy court proceedings? Our mediation and arbitration services can aid in reaching resolutions without the court's interference. These services are also less costly than court procedures and more efficient in resolving legal matters.
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.