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The usual procedure for commencing Applications in the Family Court of Australia and the Federal Circuit Court of Australia is to prepare and file an Initiating Application and supporting evidential material. In the normal course the Applications are filed in the Court and the Court will list the matter some 5 or 6 weeks later for directions. After the Application is filed in the Federal Circuit Court or Family Court it is usually served upon the Respondent or other party.
In the normal course unless a matter is listed in the Duty List the matter will not come before a Judge for hearing on the first day that the matter is listed.
In the real world there are situations that are urgent and cannot wait 5 or 6 weeks for the Court to intervene and take action.
Sometimes in parenting matters there is an urgent need for a Judge to intervene for example, to make an order for the recovery of a child who has been taken away from the parent with whom they live.
In financial cases situations may arise where one party is about to or has started to sell or dispose of assets of the marriage or relationship and if the Court does not intervene there will be nothing left by the time the matter gets to Court.
If these situations arise it is necessary to make an Application to the Family Court or the Federal Circuit Court of Australia.
The process for an urgent Application is one that requires immediate attention from the Lawyer and one that requires experience in navigating the Court systems to ensure that the earliest possible listing date is obtained.
In some financial matters for example where the main assets are either held in cash or non-traceable assets the party with access to those assets has an ability to hide or dispose of those assets so as to make it impossible or if not impossible very expensive to trace those assets and to obtain appropriate injunctions or restraints so those assets are available for a distribution.
In certain circumstances the Court has power to make orders for third parties to take steps to protect the assets of the parties to the marriage.
We have obtained various orders for example for safety deposit boxes to be only available to a third party appointed by the Court to access and to keep the assets (mainly cash and valuables) that were in the safety deposit box. There is no record as to what is held in a Bank security box.
If such a situation arises an Application could be made to the Court for an order for example, that the Bank does not allow any access for any person (including the licensee of the safety deposit box) other than a third party appointed by the Court. We have obtained such an order in the past.
To obtain such an order appropriate urgent action is required without putting the person who has the legal license of the safety deposit box on notice of the action. If that person becomes aware then that person could attend the Bank or other place where the security box is held and withdraw all the cash and other valuables.
The urgent Application will be commenced by way of preparation of an Initiating Application supported by an Affidavit setting out the facts and circumstances which make the matter urgent. The Application and its supporting Affidavit will be taken to the Registry and sent to the Registrar with an appropriate letter which sets out in particularised form the reasons why the matter is urgent. The Affidavit that supports the Application should also set out the reasons why the matter is urgent.
Some urgent Applications will be such that the Court will deal with those matters in the absence of the other party. This is rare.
In other urgent Applications the Court would allow the Application to be filed, and provide an early return date when the matter is listed before the Court. In those Applications the Court would usually make an order that the Application be served upon the other party and for the parties to deal with the matter on the early return date.
The Application should also include an order that the Court grant short service of the Application in other words reducing the time for the other side to provide a response.
The Application can also include a request/order that the matter be heard on an ex parte basis i.e. in the absence of one or other of the parties. This will often be the case in an Application for an order for the recovery of a child. It can also be the case in circumstances where one party is spending money or trying to sell an asset or has cash, jewellery or other untraceable valuable disposable assets available and seeks to place those assets outside your reach.
In the event that there is an ex parte Application made and the Court makes an appropriate injunction forthwith without the other party being available, action must be taken to serve the appropriate order on the relevant parties so that either the children can be recovered before either the children or the assets disappear.
Watson & Watson also have made urgent Applications in many Court relating to asset preservation orders (or Mareva Injunctions as they were previously known).
Watson & Watson acted in a leading case which was eventually decided by the High Court of Australia in 1987. The principle that applied then essentially still applies.
Our real experience is to obtain the orders swiftly within the Court system to enable one to protect the assets. The Courts do not make such orders lightly and it is critical that the case be prepared properly with appropriate evidence, if one is to seek an order in particular, an urgent order either by way of ex parte order or by way of an Application with service within a reduced time and for the hearing to be heard urgently ahead of other matters.
If you have any questions in relation to such matters or concerned that assets your consider to be part of the asset pool might be placed out of your reach, please contact Richard Watson our experienced Family Lawyer or his Personal Assistant Shereen Da Gloria of Watson & Watson to discuss your concerns and mitigate the possibility of “unaccounted assets” in your financial settlement.
This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 02 9221 6011.
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