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During family law proceedings in Australia, there may arise circumstances that demand immediate attention and intervention from the courts. An Ex Parte application is one such legal mechanism that allows parties to seek urgent relief from the Family Court without the presence of the opposing party.
The term “Ex Parte” is derived from Latin, meaning “on one side only.” In the legal context, an Ex Parte application refers to a legal proceeding where one party seeks relief from the court without notifying or involving the other party in the matter. This allows the applicant to seek immediate action from the court when there is a genuine and urgent need for such relief, typically due to the potential harm or consequences that may arise if delayed.
In family law matters, Ex Parte applications are utilised when there is a pressing need for a court order to address issues like child custody, domestic violence, child abduction, property preservation, or urgent financial matters. However, the court grants ex parte orders sparingly and only when the circumstances justify such an extraordinary measure. An urgent order will usually accompany a request for a urgent listing before the court and to file an affidavit, explaining the need for urgency.
Grounds for making an Ex Parte Application
To secure an Ex Parte order in family law proceedings, the applicant must demonstrate:
The Family Court of Australia, along with the Federal Circuit Court, handles family law matters. When dealing with Ex Parte applications, the court assesses the urgency and merits of each case meticulously to avoid potential misuse of this mechanism. The court acknowledges that the absence of the other party can lead to a lack of balance and fairness; hence, it exercises caution in granting Ex Parte orders. If you are considering initiating an application for ex parte orders, you should seek legal advice from a family lawyer.
The process for making an urgent application in the Family Court of Australia generally involves the following steps:
Consultation with a Family Lawyer
If you believe your situation warrants an Ex Parte application, consult an experienced family lawyer in Sydney. We can help you assess the urgency of your case and guide you through the application process and provide legal advice as to the prospects of success.
Preparing the Application
Your family lawyer will assist in preparing the application, which must contain a concise and clear outline of the relief you seek. This must be supported by filing an affidavit and include relevant evidence and legal arguments on your behalf.
Filing the Application
Once the application is ready, it must be filed with the Family Court. The urgency of the matter should be clearly indicated in the application.
An affidavit is a written statement of facts sworn or affirmed by the applicant. A supporting affidavit is a critical element of an Ex Parte application as it presents the court with the necessary information to assess the urgency and merit of the case.
After filing the application, the court will review the materials provided. If the court deems the matter urgent, a hearing date will be fixed quickly.
On the hearing date, the applicant’s legal representative will present the case to the court. The court will carefully scrutinise the order sought the evidence and arguments presented before deciding whether to grant the Ex Parte order.
Service of Orders
If the Ex Parte application is successful, the court will issue court orders detailing the relief granted. It is the applicant’s responsibility to serve these orders on the other party promptly.
While Ex Parte applications can be a vital tool in certain urgent situations, they are subject to strict scrutiny by the court. Misuse of Ex Parte applications can lead to serious consequences, including costs orders against the applicant or even sanctions for contempt of court.
The court expects the applicant to act in good faith and make full and frank disclosure of all relevant facts. If it later comes to light that an applicant has misled the court or withheld information, the Ex Parte order may be revoked, recovery orders made and the applicant may face legal repercussions.
Ex Parte applications in family law matters in Australia provide a necessary recourse for individuals facing urgent and significant challenges that require immediate court intervention. When utilised appropriately and in genuine cases of urgency, Ex Parte applications can be a valuable means to protect the rights and interests of parties involved in family law proceedings.
However, the Family Court exercises caution in granting Ex Parte orders, ensuring that the interests of all parties are safeguarded while prioritising the protection of vulnerable individuals such as children and victims of domestic violence. As with any legal matter, seeking the counsel of experienced family law professionals is crucial when contemplating an Ex Parte application.
If you are part of a family dispute and require legal advice. Contact our top top family lawyers in Sydney. We will provide you with our first free conference for 15 minutes and case evaluation.