Prior to bringing an application for parenting and/or property orders, parties are ordinarily required to make a genuine effort to resolve their dispute, including attending mediation and making an offer of settlement with a reasonable timeframe for acceptance. However, there are several exceptions to this rule, which include:
- Allegations of child abuse or family violence render it unsafe to attend mediation; and / or
- One party would be unduly prejudiced if required to complete the pre-action procedures; and / or
- A previous family law application has been filed in the last year; and/or
- The application is urgent.
What is Urgency?
The granting of an urgent listing means that the standard case-management pathway for your proceeding is fast-tracked in order to avoid imminent harm, significant loss, or disruption to one or more of the parties to the proceeding. To make a request for urgency, the application must expressly seek an urgent listing and be filed together with an affidavit explaining the circumstances of the case and a letter to the Court containing a summary as to why the matter should be prioritised.
For parenting matters, urgent consideration is generally given to protect the risk of serious harm or family violence toward a child or another party, or to intercept a child abduction. For property matters, successful applications for urgent listings are less common.
Case Study for Urgent Property Orders
We recently assisted a client who had unfortunately experienced a tumultuous separation and was required to flee with their children from significant family violence at the hand of the other party. The violence was such that it resulted in a no-contact Apprehended Violence Order for the protection of our client and the children.
Very quickly after separation, the other party proceeded to sell the parties’ assets without notice to our client. We commenced property proceedings for injunctive orders against the other party’s relentless endeavors to single-handedly and rapidly liquidate the asset pool, successfully seeking an urgent listing. The Court granted urgency, and we were able to secure the first Court date within seven (7) days of filing that application. This meant that our client successfully obtained a myriad of interim orders restraining the other party’s unilateral conduct and securing the proceeds of the sale of certain property in our Trust Account for safekeeping.
It was our client’s case that the other party’s unilateral sale of assets to the disadvantage of our client was an extension of the ongoing coercive and controlling behavior toward them. The urgent injunctive relief meant that the other party could not diminish our client’s entitlement to a property settlement and our client would no longer be prejudiced or disadvantaged by their attempts to do so.
Basis for Granting Urgency for Property Applications
Outside of precluding the imminent and unilateral sale and/or transfer of assets as was the case for our client, there are several other circumstances where the Court may consider granting an urgent listing for property matters. These include:
- Exclusive Occupation Orders: These cases are rare and allow one party right to solely occupy the matrimonial home, with the other party excluded. The Court considers the financial situation of each party, any history of, or current, domestic violence or relevant safety concerns, and the welfare of any child/children.
- Default by a Party: If one party fails to meet their obligations to pre-existing property orders or general rules of the Court, this can significantly disadvantage the other party, inclusive of financial loss and effect upon third parties like banks and trustees. When dealing with the transfer or sale of investments such as shares, businesses or real property, there can also be irrevocable taxation consequences that require the Court’s prompt intervention.
- Family Violence: The Court prioritises the safety of parties and children to proceedings above all else. As such, an imminent risk to harm or family violence is a recurring basis for matters to be listed on an urgent basis. The Court has also implemented specialist case management pathways for high risk matters, such as the Magellan List and the Evatt List, to ensure more resources are allocated in a timely manner to families who need it the most.
Obtaining Legal Advice
If you think your matter requires the Court’s urgent intervention, the best course of action is to obtain advice from a solicitor as soon as possible. If you unduly delay in bringing an application before the Court, this can hinder the prospects of obtaining an urgent listing. That being said, there can also be penalties associated with failing to attend mediation and engaging in other pre-action requirements prior to commencing proceedings if your matter is in fact not urgent. We strongly recommend that you obtain legal advice prior to commencing proceedings or attending mediation so that you are properly informed from the beginning.
If you believe your situation may require the Court’s urgent attention or you’re unsure whether it meets the criteria for urgency, it’s important to seek professional legal advice as soon as possible.
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This blog is for informational purposes only and does not constitute legal advice. If you need advice tailored to your specific situation, consult one of our family lawyers in Newcastle or Maitland.
