E is for ex parte – A-Z of Family Law

When the mental image of a courtroom springs to mind, it would almost certainly involve two parties battling it out in front of a judge. But what happens when one party doesn’t want the other one to be there?

A critical foundation of the legal system is procedural fairness, being the right to be heard in an impartial forum. An ex parte application (a Latin term loosely meaning ‘on behalf of’), however, sees just one party appearing before a decision-maker and seeking orders without any opportunity for a response from the other party(s).

In the family law jurisdiction, ex parte applications can arise for parenting orders where one party wishes to seek urgent, interim orders assumedly for the return of a child or imposition of some sort of restraint. However, they can also arise for financial orders.

The basis for an ex parte application is found within the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), specifically Rule 2.34 and Part 5.2. Rule 5.12 outlines a variety of matters on which the Applicant must address the Court.

The Court is extremely reluctant to make orders on an ex parte basis, for obvious reason.

Justice Schonell heard such an ex parte application, filed by the wife, in the proceedings of Pirani & Pirani [2023] FedCFamC1F 463. A suite of financial and parenting orders were sought in what was described as a property pool worth ‘a billion dollars’. Given the husband’s various entities domestically and offshore, a raft of restraints were also sought by the wife.

Presently, the wife outlined the relevant matters in relation to Rule 5.12:

• Jurisdictional issues, given that the husband lived within another country and did not have all of his assets within Australia. Furthermore, there were Australian properties advertised for sale and in the husband’s control which the wife was concerned could lead to net sale proceeds being able to be removed from Australia.
• An ongoing pattern of family violence, both physical and verbal.
• Threats by the husband to remove the children from her care and take them overseas.
• Threats by the husband to devalue the net asset pool, remove her car, and remove her access to finances and the family home.
• The actual removal of her car, and the removal of her access to finances and the family home.

A few key excerpts from the judgment provides some helpful insight into how the Court approaches an ex parte application:

• (an ex parte order) should be limited in time to the shortest possible period … before a preliminary hearing could be arranged (citing Stowe and Stowe) [31].
• must be satisfied that the matter is of such urgency that the applicant’s interests … can be protected only by an immediate order … balance the likelihood of harm to the applicant against the hardship to the respondent (citing Sieling & Sieling) [31].
• onus rests upon the applicant … both at the ex parte stage and at the later hearing of the matter to satisfy the Court that the circumstances justify the making and continuation of the order arranged (citing Stowe and Stowe) [31].

Justice Schonell considered the Rules and the case law above, and was ultimately satisfied with the wife’s filed evidence that ex parte orders were justified. This conclusion was in-part justified given that the wife had previously harbored concerns regarding the husband’s threats, which he had ultimately actually carried out.

The wife also provided an undertaking as to damages, meaning that she would compensate the husband if he could show that he had suffered unreasonable loss as a result of the application.

Justice Schonell made a variety of orders as sought by the wife. Service was ordered to be effected by way of email within 24 hours so that the proceedings could be brought back before the Court for mention within a few days; this would minimise the prejudice suffered by the husband and his related entities.

Some take-aways are:

1. The Court must balance the applicant’s basis for urgency with the potential prejudice to the respondent.
2. Rule 5.12 must be addressed comprehensively through the filed evidence, and specific mention should be made of any threats or concerns that have materialized already.
3. Applicants should be prepared to justify why the orders should be continued at the next court event following the granting of any ex parte orders.