URGENT & RECOVERY APPLICATIONS
In many family law situations, you may find yourself needing immediate and urgent orders from the Court. For example, you may need to seek an urgent injunction to freeze the sale of a property which your spouse controls, or seek an order placing your children on the Family Law Airport Watchlist to restrain the other parent from leaving the country with the children. For applications seeking the urgent recovery of children withheld by another person or parent, please read below, in our Recovery Applications section.
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Urgent applications:
Urgent applications are only entertained by the Federal Circuit Court or Family Court of Australia if there is evidence justifying the immediate intervention of the Court to provide relief to the aggrieved party. Some applications may be heard and determined on an “ex parte basis”, that is, without the other party being heard, or the application may be heard in Court on short notice without the other party having had the opportunity to file evidence in reply. An application being deemed as “urgent” can determine how procedural fairness is to be afforded to the other party, and you therefore need to provide clear and sufficient evidence to the Court justifying why it should make the orders you seek on an urgent basis and without giving the other party an opportunity to challenge that application.
The urgent application is commenced by way of filing an Initiating Application with the Court, and supporting Affidavit setting out the facts and circumstances which make the matter urgent. The Initiating Application and its supporting Affidavit will be taken to the Registry and sent to the Registrar who will determine whether the matter is urgent enough to put before a Judge on short notice and for immediate relief.
Some urgent Applications will be treated quickly such that the Court will deal with those matters in the absence of the other party that is, on an ex parte basis or undefended basis. These situations are rare, but will often be the case in an Application for an order for the recovery of a child.
In circumstances where one party is spending money or trying to sell an asset, or has cash, jewellery or other untraceable valuable disposable assets available and seeks to place those assets outside your reach, you may need to bring an urgent application for an injunction.
In the event an ex parte Application is made and the Court makes an appropriate injunction without the other party being available, action must be taken to serve the appropriate order on the relevant parties so that either the children can be recovered before either the children or the assets disappear. For example, you may need to provide the order to Australian Federal Police to place the Children on the Family Law Airport Watchlist or serve the order on the bank to freeze a bank account.
In other urgent Applications the Court would allow the Application to be filed, and provide an early return date when the matter is listed before the Court. In those Applications the Court would usually make an order that the Application be served upon the other party and for the parties to deal with the matter on the early return date.
If you are in situation requiring urgent action, KF Lawyers here to help. We understand that much could be at stake if you do not act quickly and we have the necessary skills to take immediate action to assist you. If you would like to discuss your options, please contact KF Lawyers to arrange a free initial consultation with an experienced family lawyer.
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Recovery Applications:
If your partner or another person withholds your children from you, you may need to consider filing an application for recovery orders. Recovery applications are commenced by way of an Initiating Application, supporting Affidavit, Affidavit for Non-filing of an FDR certificate, and Notice of Risk. Within the Initiating Application, the applicant normally seeks orders for the matter to be listed on an urgent basis and on short notice so that the matter can be brought before a Judge as soon as possible.
In situations where the children are at risk of being harmed, taken overseas, or if the person who took them has serious mental health issues, then recovery orders may be made on an ex parte basis, that is, without the need for the other party or parties to be present.
Many people find difficulty obtaining assistance from police when they try to recover children from the other parent, particularly if there is no evidence of a real, immediate risk of harm. Police will often tell you that you need to speak to a family lawyer to address your issue. If you have a recovery order, it would empower NSW Police or such other authority to assist you with retrieving your children from the other parent if they refuse to return them to you.
If need assistance with the return of your children to your care it is important to seek immediate legal advice without delay. Should you wish to discuss your options, please contact KF Lawyers to speak with an experienced family lawyer in a free initial consultation.