Seeking an URGENT Court date when filing an application

Whilst recent changes to the Family Court system have certainly resulted in faster Court dates, a party may still find themselves waiting over two (2) months for their first Court event. Where an application concerns matters of urgency (whether in a parenting application or a property application) seeking an urgent listing can be an absolute necessity.

So how does a party secure an urgent listing date?

The recent case of Bates & Ullman [2024] FedCFamC2F 1478 provides some important reminders in this regard. In this matter the Father sought a review of a Registrar’s Decision where his application for an urgent listing date had been declined. The Court instead listed the Father’s substantive application for an interim hearing 6 weeks after he had filed, having filed on 18 September and the interim hearing being listed for 30 October. The Father’s substantive application sought a recovery order (amongst other orders) where the Mother had moved the child’s place of residence resulting in the child being unable to spend time with his Father in accordance with the previous agreement reached by the parties. The Father’s application for a review of the Registrar’s decision for an urgent listing was filed on 24 September and listed for hearing on 14 October.

In his judgment, Judge Turnbull reiterated important reminders citing from a Judgment of Federal Magistrate Halligan (as he then was) including the orders that must be sought in an application where a party is seeking an urgent listing date as well as the matters that need to be addressed in their supporting affidavit.

To summarise:

1. The application must seek correct/appropriate orders; and
2. The affidavit must address the relevant matters the Court will take into account when considering the allocation of a listing date.

What are the correct/appropriate Orders to seek?

If a party wishes to seek an urgent date, i.e., a request that their matter be determined other than just ‘in the normal course of the administration of the Court’, then that party’s application needs to specifically seek orders for:

• a) an urgent listing; and
• b) the usual timeframes fixed by the Rules to be abridged or dispensed with (e.g. the timeframe for the respondent to file/serve their response).

It is not sufficient to simply seek “That the matter be listed on an urgent basis” (or similar), nor will a covering letter begging for urgency suffice if both a) and b) above are not set out in the application. In Bates & Ullman the date the review was heard by the Court was after the timeframe for the Mother to file her material in Response.

Many types of applications come to mind when considering matters where an urgent Court date may be necessary including:

• in a parenting matter where a child’s safety may be at risk;
• in a property application, where one party has an intention to sell a valuable asset without the other party’s consent, or seek to hide a valuable asset from the other party.

Failing to seek the correct orders as set out above may result in the urgent listing being declined initially, AND could also be the cause of any review of that decision failing.

Relevant information in the affidavit

Affidavit material in support of an urgent listing date needs to address the following questions for the Court’s consideration:

• Is there is a reasonable basis for the party arguing the substantive orders sought?
  • In Bates & Ullman the Judge found that there was a reasonable basis for the Orders sought by the Father in his substantive application in circumstances where there was evidence of an agreed parenting arrangement, and that arrangement could no longer be carried out due to the distance between the parties.
• The party is able to demonstrate that without an urgent listing they will be prejudiced in relation to the substantive orders they are seeking in ways that are uncommon to other matters awaiting a Court date.
  • In Bates & Ullman the Father failed on this point as he did not contend that the child was at risk in the Mother’s care. There were no issues of risk of abuse, neglect or family violence. The Judge found that urgent listings must be prioritised for those cases where children are at an immediate risk of harm. The Judge also found that as there was no risk, there was no prejudice to the Father or the child in relation to the substantive orders sought the Father, other than in ways common to other matters awaiting the Court’s attention.
• Can the filing party demonstrate that they have not had any unreasonable or unexplained delay in filing their Court application?
  • In Bates & Ullman the Judge found no delay by the Father in approaching the Court, as the last time he saw the child was in September, he only found out about the mother moving in September, and he filed his Application on 18 September.
• Is there a judicial officer available to hear the substantive application.
  • In Bates & Ullman there was no evidence as to whether a judicial officer was available to hear the interim hearing prior to 30 October. Each Registry has a limited number of judicial officers available to hear substantive applications.

On a side note, since the Covid-19 pandemic the Court’s ability to list matters has improved where the circumstances of the case lend themselves to an electronic hearing the Court has more flexibility with available dates in urgent circumstances.

Keeping these issues in mind at the time of drafting the Application and supporting material will give parties the best chance at successfully seeking an urgent hearing date.