What is an ex-parte application for child custody?
An order that is issued ex parte means that it is issued without prior notice to the other parent, based only on one person’s affidavit/testimony.
If the judge issues an emergency ex parte order, the judge will schedule a hearing and the respondent must be served before that hearing
The usual procedure for commencing Applications in the Family Court of Australia and the Federal Circuit Court of Australia is to prepare and file an Initiating Application and supporting evidential material.
In the normal course, the Applications are filed in the Court and the Court will list the matter some 5 or 6 weeks later for directions.
What happens to your family law case if an ex-parte application for child custody is made in your case?
After the application is filed in the Federal Circuit Court or Family Court it is usually served upon the Respondent or other party.
In the normal course unless a matter is listed in the Duty List the matter will not come before a Judge for hearing on the first day that the matter is listed.
In the real world, there are situations that are urgent and cannot wait 5 or 6 weeks for the Court to intervene and take action.
Sometimes in parenting matters, there is an urgent need for a Judge to intervene, for example, to make an order for the recovery of a child who has been taken away from the parent with whom they live.
In financial cases, you may need an ex parte order for situations that may arise where one party is about to or has started to sell or dispose of assets of the marriage or relationship.
If the Court does not intervene there will be nothing left by the time the matter gets to Court.
If these situations arise it is necessary to make an application to the Family Court or the Federal Circuit Court of Australia.
The process for an urgent Application is one that requires immediate attention from the Lawyer and one that requires experience in navigating the Court systems to ensure that the earliest possible listing date is obtained.
In some financial matters, where the main assets are either held in cash or non-traceable assets, the party with access to those assets has an ability to hide or dispose of those assets so as to make it impossible or very expensive to trace those assets and to obtain appropriate injunctions or restraints so those assets are available for distribution.
In certain circumstances, the Court has the power to make orders for third parties to take steps to protect the assets of the parties to the marriage.
We have obtained orders for safety deposit boxes to be only available to a third party appointed by the Court to access and to keep the assets (mainly cash and valuables) that were in the safety deposit box.
There is no record as to what is held in a bank security box.
If you’re concerned for the safety of your child, you can request that a court issue an emergency ex parte order of custody.
The court will grant your request if, and only if, you can convince the judge that in their current situation, your child is at immediate risk of physical or psychological harm.
In Australian family law, an ex parte order is made in circumstances of urgency where the other party has not attended Court.
It is possible to get an ex-parte interim order for parenting in circumstances where not having an urgent order may place the child at risk.
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.