Some family law matters are so urgent that immediate relief from the Federal Circuit and Family Court of Australia (the Court) is required—sometimes within the same week, or even the same day. This may occur when immediate action is required to protect someone’s safety or wellbeing, particularly in cases involving family and domestic violence.

In particularly urgent situations, the Court may need to consider evidence from only one party to meet critical time constraints. This type of hearing, known as “ex parte”, occurs when a matter is heard without the other party being present. These hearings are reserved for the most urgent and exceptional cases.

Unfortunately, there is no legislation or case law that explicitly outlines which matters qualify as urgent and justify an ex parte hearing, and which do not. Each case is assessed individually on its own merits. For this reason, it is important to obtain advice before commencing any proceedings, especially in urgent or serious circumstances.

The case of Sieling, R.E and Seiling, S.H [1979] FamCA 23; (1979) FLC 90-627 gives some interesting insight into the requirements for a matter to proceed ex parte. The Court outlined several criteria that provide guidance on what is typically required for a matter to proceed ex parte:

• the nature and imminence of the risk to the applicant, to a child, to property interests or to a third party;
• any hardship or prejudice to the respondent and children or to any third party which may arise from proceeding to make the order ex parte;
• where the order relates to property, whether there is a need to protect the respondent by requiring the applicant to give an undertaking as to damages;
• the possible consequences of delaying the order until the respondent can be heard, and the steps which could be taken to give notice to the respondent;
• the need to protect the respondent by ensuring that the order is clear in its terms, that it is served within the shortest possible time, that a return date is fixed and that the respondent be informed of [their] rights to apply to have the matter brought on before the return day.

In circumstances where a particular matter is urgent and the Court has granted leave for the matter to proceed ex parte, it is common for the applying party to also seek an injunction against the opposing party. Injunctions are specific court orders that prevent a party from doing a particular act or engaging in certain conduct, for example, preventing a party from leaving Australia, preventing the sale of an asset or removing a child from the care of one parent.

In the case of Tsiang & Wu and Ors [2019] FamCAFC 128, the Full Court determined that the party seeking relief by way of an injunction needs to establish that there is a serious issue to be tried, or in other words, establish a prima facie case. Additionally, it must also be established that the claim for relief will be endangered if the injunction is not granted.

Ultimately, ex parte applications and injunctions are uncommon, and they are extremely niche areas that require expertise to properly evaluate and advise on.

If you have any queries about urgent and ex parte applications in family law, please do not hesitate to contact our office on 03 9670 4122.