Ex parte orders – when to make them and why9-March-2021 Family Law By Simone Green
Quite literally, “ex parte” is a latin expression meaning in the absence of the other party. There are strictly limited circumstances in Family Law litigation where it is possible to obtain a Court order without the opposing party (Respondent) even having notice of the Application. Given the great potential for the miscarriage of justice, should such power be misused, orders are only issued for very urgent, interim and procedural matters and only until such time as the Court can deal with the matter more comprehensively.
Ex parte orders may be made in both financial and parenting cases in both Courts exercising family law jurisdiction (Federal Circuit Court and the Family Court) although some of the procedures for Application differ between the Courts.
The Courts can make an ex parte order if it is not practicable for the Respondent to be served with a copy of the Application in time; for example, if the Respondent’s whereabouts is unknown and quick service will be difficult; or, if advance knowledge of the Application may result in the destruction of evidence or some other kind of financial harm such as liquidation of assets, damage to or removal of assets.
Examples of when it may be appropriate to make an Application for urgent ex parte orders include:
- Child abduction by a parent of the child (seeking a recovery order) on the basis of urgency.
- Risk of harm to a child (seeking urgent orders for cessation of contact or change of living arrangements)
- Identification or seizure of evidence (seeking a search order or Anton Piller order) where there is a very real risk that such evidence or items may be removed or destroyed.
- Risk of disposal of assets or removal of assets overseas, such as cash in bank accounts, or sale of assets (seeking injunctions to preserve property)
An Affidavit (sworn statement) accompanying the application for urgent ex parte orders must set out the reasons justifying the orders sought, such as:
- The nature and immediacy of the damage or harm which may result without the urgent order;
- what steps (if any) have been made to tell the Respondent or their lawyer (if relevant) of the intention to make the Application;
- details of the last known address of the Respondent;
- the reasons why it is not more appropriate to seek abridged service of the Application on the Respondent (meaning an urgent hearing on short notice)
- whether there is likely to be any hardship, danger or prejudice to the Respondent or a child or a third party if the order is made.
Family lawyer, Simone Green (Accredited Specialist in Family Law) urges anyone considering making an ex parte Application to obtain specialist legal advice before doing so and to understand the requirements for the granting of the Application, and potential consequences. In a financial case, the Applicant may need to give an undertaking as to damages. This means that the Applicant promises to financially compensate a person who has been harmed by a wrongly granted injunction. Speak to our specialist team today on 02 8196 0105 to understand if an ex parte order is appropriate for your circumstances.
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