Generally, if a client contacts our office about a parenting, guardianship or domestic dispute, the situation is already serious. However, there’s a big difference between a serious situation and an emergency situation when it comes to domestic disputes.
Quite often when clients attend our office, they instruct us that their particular situation is urgent and request that their case be heard before the Family Court as soon as possible. Yes, urgent disputes can be filed with the Family Court on a “without notice” basis instead of the standard non-urgent or “on notice” application. One of the big advantages of a “without notice” application is it is a much quicker process because it means that the Respondent (or the other side in the proceedings) is not given notice, or warning, that an application is being heard in the Court. The application will therefore proceed on an “ex parte” basis, meaning with only the applicant present. But there are criteria that need to be met before a “without notice” application can be made.
Only to be used in case of emergency
The thing that most clients don’t appreciate is that “without notice” applications should only be used for real emergencies. Specifically, where there is strong and reliable evidence that real risks would likely arise if the application proceeded “on notice” (that is, if the Respondent were provided with warning). Examples of emergency situations include where you or your children are under threat of serious injury, or there is risk to you or your children's personal safety, or that undue hardship would occur if the application was made "on notice".
The reason “without notice” applications are only considered in the event of an emergency is because everyone has the right to confront the evidence against them at a fair hearing, and this cannot be achieved where matters are heard and determined without everyone’s evidence before the Court.
The requirements that parties need to meet if they want their matter to be filed with the Family Court on a “without notice” basis are set out in case law, and include:
- You must have a clear case on the merits, meaning that there can be no room for the opposition to point to gaps in your evidence, law or argument.
- You must show that there will be irreparable injury if there is a delay caused by giving the Respondent warning about the application. There must be a specific type of injury that would (or might) result from the delay caused by providing notice.
- You must not have delayed in making your application.
- You must show that, if you are granted the order you are seeking, there will be only brief and provisional effects. You cannot deny a Respondent the right to challenge the order and there must only be a brief time before the order expires. For example, generally relocation applications will need to be determined by hearing both sides of a story before a decision is made because the effect of such an order will have a long-lasting effect.
- You must show strong grounds for overriding the natural justice requirement that all parties confront the evidence against them.
With this in mind, if you visit a family law lawyer with a matter that you believe to be urgent, you will need to refer to these factors before instructing, or expecting, your lawyer to make a “without notice” application with the Family Court. Unfortunately, more times than not, it may be that you are in a circumstance where you are required to provide the other party with advance warning that you are filing in Court.
If you have any questions, please feel free to call us at Aspiring Law.