In an ideal world, all Family Court parenting applications would be dealt with urgently. After all, it’s best for arrangements for children to be made as quickly as possible after parental separation, so everyone can settle into their new lives sooner.
However, the practical realities of the overburdened Court system mean it can take significant time for parenting matters to proceed to a first hearing, let alone a final one.
In some situations, it may be possible to ask the Court to give you a much earlier first hearing date, through filing an urgent application to the Federal Circuit and Family Court of Australia. Usually, this will be in situations where there is a need for fast action to deal with a particular unexpected event.
Here, we take a look at the circumstances where a Court might be inclined to give your matter a priority listing, and how to go about making an urgent application to the Court,
Outline of parenting orders
What is a parenting order?
A parenting order is a Court order specifying the arrangements for how parents will share the responsibility for the care and welfare of a child. It will typically set out details of how time with the child will be spent, as well as any number of other factors relevant to the care of a particular child. Parties to the order must comply with its terms.
Orders can be interim, meaning they operate until the Court can make a final order. Final orders are then in place until a child reaches age 18.
How do you get a parenting order?
If parents don’t privately agree on parenting arrangements, they can apply to the Court to determine what arrangements should be put in place. This requires filing an Initiating Application in the Courts, together with relevant supporting material.
Before this can happen though, parties must attend Family Dispute Resolution (mediation) and obtain a section 60I certificate proving this has occurred.
Due to the backlogs in the Court system, it can take a number of years to reach a final hearing. As such, parents will usually seek that the Court makes interim orders to handle arrangements until the final hearing.
Interim orders are usually made within around six weeks of filing if the Court’s benchmarks are met. Sometimes, though, interim orders are needed much more urgently than that and therefore it’s necessary to make an urgent application.
Reasons for applying for an urgent parenting order
While each matter is considered on its own facts and merits, certain kinds of situations are almost guaranteed to be considered urgent, such as when an issue has arisen which immediately threatens the safety of a party or child.
Other typical urgent parenting matters include:
- Child abductions and the need for recovery of a child;
- Unilateral relocations of a child away from a parent;
- The need to prevent travel with a child (particularly overseas);
- Resolution of disputes over medical treatment of a child; and
- The need for enforcement of an existing parenting order that was breached (or, if no orders yet exist, obtaining injunctive relief).
(Financial or property matters can be urgent too, however in this article we cover the process for urgent applications in parenting matters only.)
How to make an urgent application
Together with your Initiating Application, you will need to let the Court know that you are requesting an urgent hearing. This is done via a brief, one page cover letter to the Court, enclosing your Application and supporting Affidavit.
In the letter you would explain the urgency of the situation to the Court. You should also ensure the first order on your Application deals with abridging or dispensing with any time requirements with respect to notice, service and/or listing.
If parenting proceedings have already begun, an urgent application is made by filing an Application in a Proceeding, again with supporting Affidavit setting out the facts and circumstances of why the matter is urgent.
Once your Application is filed, the Court will then consider whether it should be listed for hearing as an urgent matter.
Dispensing with the need for dispute resolution
As mentioned, if filing a parenting application it’s necessary to first attempt Family Dispute Resolution. However, in urgent matters, there’s often simply no time to undertake this step.
As such, you’ll need to also ask the Court to dispense with the requirement for you to obtain a section 60I certificate. You’ll need to set out the reasons why you seek the requirement to be waived.
Exemptions are typically made in urgent applications if there is a risk of family violence or if there are other factors that mean parties are unable to fairly negotiate (such as a power imbalance between parties). An exemption might also be granted if proceedings are under way and a party has breached an existing order.
Ex Parte urgent applications
An urgent application often includes a request that the matter be heard “ex parte”, which means in the absence of the other party and without prior notice to them.
This is most suited to extremely urgent situations such as a child recovery. The basic idea is that you don’t want to tip off the other party to a recovery operation, in case they flee or otherwise attempt to stymie recovery of the child.
In applying for an ex parte urgent application, you’ll need to set out in a supporting Affidavit the grounds on which you are seeking an ex parte hearing and why you require urgent orders. Further issues that need to be addressed include:
- Confirmation of your compliance with the rules relating to dispensing with service;
- Information about any previous proceedings between parties and any current orders in place;
- An explanation of why the other party wasn’t informed of the application; and
- What the potential risks are, and the immediacy of any threat to a child, if the order sought is not made.
You must never include false or misleading information in your Affidavit.
What if the Court is closed?
If you need to make an urgent application and the Courts are closed, you can call the emergency Court number (1300 352 000) to access the urgent out-of-hours service.
Note that this is only an avenue where there is a risk a co-parent will take a child out of Australia before the next working day. (Lawyers can also contact the out-of-hours service if there is a risk of dissipation of assets before the next working day.)
Urgent applications via the COVID-19 List
Another option for making an urgent application is to apply via the COVID-19 List. This is a specialist Court list developed when the pandemic began, to assist families experiencing family law disputes relating to the pandemic.
Last year, all applications accepted into the COVID-19 List were given a first court date within three to seven business days.
There is a wide scope for allowing applications onto the COVID-19 List. There may be situations involving an increase in risk of family violence, or there may be parental disputes over medical issues or vaccinations. There may be a need to address issues around parenting orders that were suspended or altered during the pandemic due to lockdowns and travel or border restrictions.
There are specific requirements for how to file if you wish to be considered for the COVID-19 List, so be sure to follow the Court’s instructions carefully.
For your urgent application to succeed, you need to carefully prepare your case, setting out a convincing argument as to why your matter is urgent and submitting strong evidence in support of your argument.
To give yourself the best chance of success, seek the assistance of an experienced family lawyer. Please contact Ryan & Seton Lawyers and we can assist you to obtain the earliest possible hearing date in your family law matter.