PANIC BUTTON: PREPARING URGENT APPLICATIONS

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1 PANIC BUTTON: PREPARING URGENT APPLICATIONS There are a number of reasons why an urgent application may be necessary in a family law matter. These urgent applications may require the Family Court or the Federal Circuit Court to consider making ex-parte orders having regard to the circumstances of the particular matter. Each case is considered on its merits and the onus remains with the applicant for an ex-parte order or injunction at both the interim and final hearing. 1 Some types of urgent orders are: Recovery Orders PACE Alerts or Airport Watch List orders Injunctions against property Interim Spouse Maintenance Before the Court can consider making an urgent order (or ex-parte order), the applicant must disclose to the court all of the material facts to be considered, which includes the information that a respondent would place before the court if they had been made aware of the application. Unless this done, the implied condition upon which the Court acts in forming its judgment is unfulfilled and the order so obtained must almost invariably fall. 2 These principles were adopted by the Federal Court in Town & Country Sports Resorts (Holdings) Pty Limited v Partnership Pacific Limited (1988): A party who seeks the granting of an injunction on an ex parte basis has a duty to place before the court all relevant matters including such matters which would have been raised by the respondent in his defence if he had been present. However, in family law matters they present with their own difficulties in terms of an ex parte order. In 1993, Baker J in Kennedy and Kennedy (1993) FLC , considered that there were too many ex parte orders being made requiring the Police to remove a child or children from one parent and placing them with the other parent, with these orders being made based upon very thin evidence. In his view, an ex 1 Stowe and Stowe (1981) FLC Isaacs J explaining the principle in Thomas A Edison Limited v Bullock (1912) at 682.

2 parte order should not be made except in extreme circumstances and only if the physical, sexual and emotional welfare of children is at risk. As family lawyers we are or should be aware of the fundamental principle of procedural fairness. All other parties to any application should be given the right or opportunity to be heard. However, there will always be those matters where an urgent or ex parte application is necessary where the overall interests of justice require a court to act without proper notice to the other party. 3 FEDERAL CIRCUIT COURT RULES 2001 Rule 5.01 In an urgent case where service on the respondent is not practicable, on application the Court may make an order until a specified time or until further order. Rule 5.02 Unless the Court orders otherwise, an urgent application must be made in the form approved for the purpose of starting a proceeding under sub-rule 4.01(1) or an application in a case under sub-rule 4.08(1). Rule 5.03 Evidence (1) Unless the Court otherwise orders, the applicant must establish by affidavit or, with the leave of the Court, orally: (a) whether there are previous proceedings between the parties and, if so, the nature of the proceedings; and (b) whether there are any current proceedings in any court in which the applicant or the respondent are parties; and (c) the particulars of any orders currently in force between the parties, including the courts in which they were made; and (d) the steps that have been taken to tell the respondent or the respondent s legal representative of the applicant s intention to make the application or the reasons why no steps were taken; an (e) the nature and immediacy of the damage or harm which may result if the order is not made; and (f) why the making of the order is a matter of urgency and why an abridgement of the time for service of the application and the fixing of an early hearing date would not be more appropriate; and (g) if the application relates to a financial matter, the capacity of the applicant to give an undertaking as to damages; and (h) the other facts, matters and circumstances relied on by the applicant in support of the application. 3 CCH Commentary, Australian Federal Circuit Court Practice Commentary Rule 5.01 Urgent Application 2

3 (2) Paragraph (1)(d) does not apply to an application for an interim injunction under section 46PP of the Human Rights Act. FAMILY LAW RULES 2004 Rule 5.12 An applicant seeking that an interim order or procedural order be made without notice to the respondent must: (a) satisfy the court about why: (i) shortening the time for service of the application and the fixing of an early date for hearing after service would not be more appropriate; and (ii) an order should be made without notice to the other party; and (b) in an affidavit or orally, with the court's permission, make full and frank disclosure of all the facts relevant to the application, including: (i) whether there is a history or allegation of child abuse or family violence between the parties; (ii) whether there has been a previous case between the parties and, if so, the nature of the case; (iii) the particulars of any orders currently in force between the parties; (iv) whether there has been a breach of a previous order by either party to the case; (v) whether the respondent or the respondent's lawyer has been told of the intention to make the application; (vi) whether there is likely to be any hardship, danger or prejudice to the respondent, a child or a third party if the order is made; (vii) the capacity of the applicant to give an undertaking as to damages; (viii) the nature of the damage or harm that may result if the order is not made; (ix) why the order must be urgently made; and (x) the last known address or address for service of the other party. Whilst we note that this (r5.12) only refers to orders, it is clear that this reference also includes injunctions, even though there is explicit reference to both orders and injunctions in section 114 of the Family Law Act Rule 5.13 Necessary procedural orders If the court makes an order on application without notice, the order must be expressed to operate: (a) until a time specified in the order; or (b) if the hearing of the application is adjourned until the date of the hearing. LISTING OF APPLICATION In most cases, Applications in a Case are listed as near to 28 days after filing as practicable. However, applications can be listed earlier than this if the registrar is satisfied that the stated reason for urgency is significant and credible, and harm may be avoided, remedied or mitigated if the case is heard earlier. The registrar will 3

4 assess the urgency by considering the evidence within the supporting affidavit. One of the orders sought must also be for an abridgement of the usual service time. There is the avenue to seek ex parte orders in circumstances of extreme urgency. For example, where there is a risk to a child or a child is a flight risk and provided the potential abductor is placed on notice of an application for appropriate restraining orders. In these matters, it is necessary to include specific details in the affidavit as to why the circumstances do not permit time for the documents to be served and a response obtained before orders are sought. In Sieling and Sieling (1979) FLC the Full Court of the Family Court considered the principles applicable in family law matters, stating (at 78,254): The general principles are that the Court must be satisfied that the matter is of such urgency that the applicant's interests (or the interests of the child) can be protected only by an immediate order. It is necessary to balance the likelihood of harm to the applicant against the hardship to the respondent of making an order without hearing him. The more drastic the order the more grave must be the risk to be averted and the more important the requirement that the respondent be heard at the earliest opportunity. An order that a party be excluded from the home or that a child be removed from the custody of a party must be supported by evidence of an imminent risk of such a nature that the Court cannot wait even the period of time necessary for short service. An order restraining dealings in property may have less drastic consequences for the respondent, or the consequences may be such that the respondent can be protected by an undertaking as to damages. Nevertheless, in such cases the need for urgent action by the Court may also be less apparent and the possibility of postponing the matter and bringing it on at short notice should be considered.'' (emphasis added) The Full Court also provided a useful summary of factors that will require consideration, saying (at 78,255): While it is not possible to lay down precise or exhaustive guidelines to cover the many different cases which arise, the matters which the Court should consider when asked to act ex parte include the following: 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 4

5 is fixed and that the respondent be informed of his rights to apply to have the matter brought on before the return day. The applicant should expect that the Court will enquire as to the steps which could have been taken to notify the respondent, especially where the respondent has a legal representative on the record.'' 4 In Rainer and Rainer (1982) FLC the Full Court approved Seiling's case and applied those principles with respect to an ex parte order as to a child's care, noting that the trial judge had applied the wrong test, stating:... his Honour [the Trial Judge] has approached the question on an erroneous basis. He has asked himself whether there would be any benefit to the child from remaining with his father and whether any harm would flow to the child if the order were made. The proper question to ask, on such an ex parte application, was whether the material before the Court showed any likelihood of harm to the child if the order were not made. Clearly, it did not. The child had lived with his mother all his life and there was nothing to suggest that he should be removed from her custody immediately. The husband's affidavit raised a number of matters which may well have been relevant in any full-scale consideration of the custody issue. These were matters which needed testing and further investigation. His Honour's decision changed a long- standing situation without any adequate ground being shown as to why this needed to be done as a matter of urgency. To say, as his Honour did, that the order was to have only temporary effect is to miss the point. It was not shown to be necessary to make the order at all.'' Even if there has been a failure to provide full and frank disclosure with respect to an ex parte application, the best interests of the child will always remain the overriding consideration. 5 It is a well known principle of law that in order to obtain an ex parte order, full and frank disclosure must be made of all the relevant circumstances; not only those which support the wife's case, but also of facts and circumstances which do not support the wife's case. It is like a contract of uberrimae fidei, an obligation not merely not to misrepresent but also to disclose all material facts. In the present case this was not done.... If this were the only issue relevant in this case, I would have no hesitation following decisions such as the decision of the High Court in Thomas A. Edison v. Bullock (1912) 15 C.L.R. 679, and discharge the ex parte order. But this is clearly not the end of the matter; this is not a matter in commercial causes, as I reminded counsel earlier, this is a matter involving the custody of a child. And it is quite clear that in relation to the custody of a child, the paramount concern is the welfare of the child, and that paramount concern is often sufficient to override even considerations as to how the child came to be within the jurisdiction...'' 4 CCH Commentary, Australian Federal Circuit Court Practice Commentary Rule 5.01 Urgent Application 5 Nygh J in Mobasser and Nankervis (1983) FLC

6 As stated above, the onus always remains on the applicant for an ex parte injunction, both at the initial hearing and on the return date. RISKS IN MAKING AN EX PARTE ORDER In the 2014 case of Helbig & Rowe and Ors (No 2) (2014) FLC , the mother s appeal against an order made by Cleary J ex parte and in chambers was dismissed. However, in giving their Reasons the Full Court found that the mother was not afforded procedural fairness and before the order was made removing the children from her care (and placing them with their father) she ought to have been given the opportunity to be heard. The application was filed by the Independent Children s Lawyer (ICL). The Full Court of Bryant CJ, Finn and Strickland JJ, stated: (1) It might perhaps be asserted that the provisions of the Act and the rules just set out entitled her Honour to determine in Chambers the application of the Independent Children s Lawyer (the ICL) for orders removing the children from the mother to the father on the basis of the expert s report and also to make such orders without hearing the mother, subject to considering and being satisfied of the matters specified in r 5.12 (para 35). (2) However, in our strong opinion, what her Honour was not entitled to do was to hear the representative of the ICL in support of the application in the absence of a transcript being taken. We rely in this regard on the observations by Gibbs CJ and by Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342 (para 36). (3) Urgent, ex-parte applications can on occasions be necessary, for example, where there is a feared threat to life, or a credible risk that a person will flee, or property be taken from, the jurisdiction. But if oral submissions are made in support of such an application, they must be recorded so that the party bound by the order can ultimately know all that was put to the judge in support of the application. In what would be an extremely rare case in which recording facilities were not available, the judge would need to keep extensive notes of the submissions made, in order that such notes could in due course be made available to the parties. This is, or should be, the practice in relation to the after hours emergency service which is operated by the Family Court and the Federal Circuit Court and to which reference was made in submissions to us by the solicitor for the father. It is our understanding that such proceedings are in any event recorded whenever possible (para 37). (4) In addition to our concern that there is no record of what occurred when the ICL s representative appeared before her Honour on 8 October 2014, we are also not necessarily persuaded that this was a case in which there was sufficient justification for making orders which removed the children from the mother s care without giving the mother the opportunity to be heard (para 38). (5) In our view, the more appropriate course for her Honour to have adopted once the expert s report was released and the application filed by the ICL, was for her Honour to have called all parties into open court and to have given the mother and also the intervener the opportunity to be heard in relation to the ICL s application. If having heard the mother and the intervener, her Honour proposed to make the order moving the children to the father, the parties could have been restrained at court while the resources of the intervener were used to collect the children (para 40). 6

7 (6) We conclude for the reasons which we have given, that the mother was denied procedural fairness in the making of the orders (para 42). Notwithstanding the Full Court s findings, the mother s appeal was dismissed. The Full Court stated further: (7) While we do not disagree in any way with his Honour s decision to leave the children with the father in the interests of their stability, and indeed we would even venture to suggest that it was in the circumstances the only decision open to him, we do not agree with the submission of the ICL that the hearing before his Honour can be regarded as having remedied the procedural unfairness suffered by the mother by reason of the orders made on 9 October This is simply because by the time the matter reached Austin J some 14 days after the making of the ex-parte orders it was too late for the procedural unfairness involved in the making of those orders to be cured because of the need to ensure stability in the children s living arrangements. Indeed once the children had been moved, it would have been too late (para 44). (8) However, as we explained to the mother at the hearing of the appeal, if we were to attempt to re-determine the matter ourselves (which would be impossible if cross-examination of any party or parties was sought), or if we were to remit the matter for another interim hearing by a single judge (if such a hearing could be arranged before the final hearing on 19 January 2015), the result would almost inevitably be that the children would not be moved from the father s care where they have now been for some two months, given that in a little over a month s time there is to be a final hearing of the parenting proceedings. In other words, this court or another judge at first instance would be faced with the same situation as that which faced Austin J on 23 October 2014 (para 46). (9) For these reasons we have reluctantly concluded that there is no remedy that could be provided to the mother in the event that the appeal was to succeed; in other words, the appeal has no practical utility, and thus must be dismissed (para 48). There are some very real dangers in making an ex parte order. This was the case in D and Y (1995) FLC when a Magistrate made an ex parte order relying on the evidence of a purported expert psychologist who had attended with the subject child, with such child making quite bold assertions about her mother and the mother s new partner. The Magistrate suspended the child s time with her mother for a period of 6 weeks and directed that the mother not be informed about the proceedings for that 6 week period, allowing for a Police investigation. In the above case, the expert psychologist was not a qualified psychologist and the mother ought to have been informed of the orders made. In addition to urgent parenting matters, there are those cases where there is a pressing and present need for urgent financial assistance/relief. Pursuant to section 77 of the Act, a party is able to commence proceedings seeking urgent spouse maintenance pending the disposal of proceedings. Section 77 provides: Where, in proceedings with respect to the maintenance of a party to a marriage, it appears to the court that the party is in immediate need of financial assistance, but it is not practicable in the circumstances to determine immediately what order, if any, should be made, the court may order the 7

8 payment, pending the disposal of the proceedings, of such periodic sum or other sums as the court considers reasonable. In Williamson and Williamson (1978) FLC Fogarty J stated: It seems to me that s 77 [the section which formerly dealt with both urgent spousal and child maintenance] is aimed at orders in circumstances of relieving pressing, present need, and is determined on a rather pragmatic basis without any real hearing upon the merits. It is in the nature of a stop gap order and is an order for a short, ordinarily definite period of time, for the intervening period prior to the hearing of the major application itself. It is quite distinct from a claim under s 80(h) [now s 80(1)(h)], which enables the court to make an order for maintenance until further order, which is what I think is normally described as an interim maintenance order, or a maintenance order pending suit. There different considerations apply and it would normally involve some hearing on the merits, although not perhaps as final or exhaustive a hearing as would be the case if one were hearing the matter finally. The above are just some examples of matters involving urgency and/or ex parte orders and injunctions. As family lawyers it is imperative to take detailed instructions from our clients to ensure that there is some urgency and if not, consider other ways to move the matter to a more cost effective and practical resolution. Often (and unfortunately), our clients believe that their matter is urgent however based on the principles above, the Court often disagrees and the client is left feeling dissatisfied with a first court date some 6 to 8 weeks later. Rebecca Parry Special Counsel Best Wilson Buckley Family Law March