September 16, 2013 by Todd
Sometimes when I see a family law client for the first time they will ask me whether they can ask a Court deal with their matter urgently. Given that it commonly takes between a month and two months from when an application is filed until the first court date for a normal matter, this can be very important depending on their circumstances.
The answer depends, in part, on what type of family law matter the client has. This article will focus on disputes involving a child.
The need for a section 60I certificate, and when a certificate is not required
For disputes involving a child, a person will usually need to obtain a certificate from a family dispute resolution practitioner before they go to Court. This is called a section 60I certificate. However, a section 60I certificate is not required where:
(i) All of the parties involved in a case consent to an order being made.
(ii) the court is satisfied that there are reasonable grounds to believe that there has been abuse of the child or family violence by one of the parties to the case, or that there is a risk of either of those things happening.
(iii) The application is a Contravention Application in relation to an order which is less than 12 months old, and the Court is satisfied that there are reasonable grounds to believe that the person who is alleged to have breached the orders has shown a serious disregard for their obligations under the order.
(iv) The application is made in circumstances of urgency.
(v) For some reason, one of the parties to the case is unable to participate effectively in family dispute resolution. For example, there may be a power imbalance in the relationship between the parties which means that one party is unable to negotiate with another due to being fearful of them or being open to influence. The parties may live far away from each other. They may live somewhere where a family dispute resolution practitioner is not available.
What are some examples of urgent parenting applications?
While each case is different, the following are examples (see Myers & Myers  FMCAfam 1104):
(i) Where a child and/or parent is at immediate risk of physical or psychological harm arising from abuse, neglect or family violence.
(ii) Child abduction matters.
(iii) Applications for recovery orders – that is, orders requiring a child or children to be returned to your care.
(iv) Where a party has decided to relocate with the child without your consent, to a place which will prevent you from continuing the relationship you had with the child prior to the relocation.
You either have a certificate or you are exempt – what orders should you seek when asking for an urgent hearing?
You will need to seek an order for short service and a further order for an urgent hearing of your matter. See the decision of the Full Court of the Family Court in Vibbard & Garcia  FamCAFC 114.
What should you put in your affidavit?
In Vibbard & Garcia  FamCAFC 114, the Full Court said that the following questions should be asked by a Court when considering whether to list a matter urgently:
(i) How likely is it that your application for parenting orders will be successful?
(ii) If your application is not dealt with urgently, will that make it more difficult for you to make your application later? For example, in a relocation case, will your children be settled in their new location? In a child abduction case, if the child has left Australia the Court will not have the power to make orders about that child.
(iii) Did you take too long to go to Court? If so, do you have good reason?
(iv) Is a judge available to hear your case on the earlier date?
Your affidavit should tell the Court how your circumstances are relevant to those questions, and particularly the first three (so far as they are relevant).
It is critical for you to get good legal advice when making an urgent application to the Court. A failure to do so can lead to your matter not being heard by the Court for a matter of weeks, which may be critical where time is of the essence. Let our knowledge be your edge. Contact us now.
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