X is for (E)x Tempore – A-Z of Family Law

A phrase that commonly appears in judgments of the Court is ‘ex tempore’ i.e. Ex Tempore Reasons For Judgment.

But what does this really mean? Ex tempore reasons are essentially those that are orally provided following the conclusion of a hearing. They are not overly common, as many decisions require substantial time for the judicial officers to consider all facets of a matter before a determination is made and a judgment drafted. Some cases, however, due to factors such as simplicity, urgency, or the involvement of procedural matters, will see the decision being provided immediately (or soon after the hearing finishes).

There can be advantages and disadvantages to such an approach: the issues are fresh in the judicial decision-maker’s mind, the parties can quickly understand the outcome and move forward, but there is a higher risk of error.

The decision of Justice Wilson in Gronchi & Toyoda (No 2) [2025] FedCFamC1F 111 in Division One of the Federal Circuit and Family Court of Australia is an example of an ex tempore judgment being made.

The proceedings involved two parties arriving for day one of a four-day final hearing, only for Justice Wilson to find their cases ‘very far from being ready’ [10]. No balance sheet was prepared nor agreed upon. There were many important issues and disputed values, without any evidence on hand as to formal valuations. Naturally, the position of each party’s cases was not favorably looked on by the Court, particularly in light of the use of the Court’s resources and the parties’ own waste of costs.

Justice Wilson ultimately determined that the final hearing could not proceed and that matter was no longer suitable for Division One. Orders were made for the proceedings to be transferred to Division Two, alongside some other procedural orders in an effort to have the parties better prepared for a final hearing once dates were allocated before a Judge.

Purely speculatively from the writer, an ex-tempore judgment may have been provided in these proceedings so as to provide the parties’ with a quick rebuke, to avoid further delays, to return the proceedings into a more appropriate forum, and because the stakes were relatively low i.e. the substantive effect of the proceedings were not to make any final orders.

The Gronchi & Toyoda decision reminds parties that:

1. If fortunate enough to be listed before the Court for a Final Hearing, the case must be prepared to run on the day.

2. Procedural orders prior to a Final Hearing are not meaningless; they are intended to be strictly followed.

3. Unpreparedness for a Final Hearing can have significant consequences, including a subpar case, costs orders, or a lack of success for one’s own application for costs.