When parents separate, most parenting matters can be addressed through the usual court process. However, there are circumstances where waiting for a matter to progress in the ordinary way may not be appropriate, particularly where there are concerns about a child’s immediate safety or wellbeing.
If you’re worried that your child may be harmed, taken away or withheld from you, waiting for the usual court process to complete may not be the appropriate thing to do. In genuinely time-sensitive situations, you can request the Federal Circuit and Family Court of Australia (the “Family Court” or the “Court”) to deal with your parenting matter urgently.
How are Interim Orders used by the Family Court?
An urgent application is not a separate type of parenting order. Rather, it is an application asking the Court to deal with a parenting matter urgently and, where appropriate, make interim orders. An urgent application may seek an urgent listing. Interim orders provide for temporary arrangements for your child until the case can be considered in full. These can cover where a child lives, time spent with a parent, decision-making or other aspects of their care.
The Court will first consider whether the matter genuinely needs to be brought forward. If it does, an earlier hearing can be listed to deal with the temporary orders you are seeking.
When is a parenting matter considered to be urgent?
Urgency in parenting matters mainly comes down to what could happen to your child if the matter must wait.
The child’s best interests are always the paramount consideration when the Court is deciding whether to make a parenting order. This includes considering arrangements that promote the safety of the child and each person who has care of the child, including protection from family violence, abuse, neglect and other harm. The Court must also consider the other matters set out in section 60CC of the Family Law Act 1975 (Cth).
The Family Court has identified several common situations in which urgent parenting orders may be sought:
- a child is at immediate risk of physical or psychological harm
- there is a risk of child abduction
- a parent is planning an imminent relocation with the child
- a child has already been removed or relocated and may need to be recovered.
Child Relocation and Recovery Orders
If a child has already been relocated without the consent of the other parent and is not being returned, a recovery order may be necessary. A recovery order is a specific court order requiring the child to be returned and is different from simply asking for an urgent hearing about other parenting arrangements.
For more information about preventing a child from being relocated, see one of our other articles on ‘Obtaining an Injunction Against the Relocation of a Child’.
Not every upsetting situation is considered urgent
It helps to separate two different things: how serious or upsetting a situation feels, and how quickly the Family Court needs to step in.
A planned interstate or overseas move, for example, may involve no allegation of violence at all – but it can still call for urgent action, because waiting could let the child be moved before the dispute is resolved.
The reverse also holds. A dispute can be extremely upsetting without needing an immediate hearing – the Court has, for example, refused urgent listings over a proposed change to the changeover location before school holidays, or where a parent hadn’t seen the children for several months but couldn’t show that waiting for the normal hearing would cause further prejudice.
Similarly, longstanding concerns can be harder to frame as urgent if there has been no development and the parent has waited a significant time before commencing proceedings.
None of the above sets a fixed rule. The important question is always: What is likely to happen if the Family Court does not act now?
Risk of harm does not need to be certain
If you’re concerned about your child’s safety, you do not have to prove that future harm is certain before the Court can take the risk seriously.
The Court can take protective measures where the evidence establishes a risk of harm to a child. The assessment of risk is forward-looking: the Court considers what might happen in the future based on the evidence before it. This means the Court may find that a child faces an unacceptable risk of harm even where it cannot make a definitive finding that an allegation of past abuse occurred.
That doesn’t mean evidence isn’t needed. Your material should clearly set out what the risk is, why it is serious, and why waiting would put the child at greater risk.
What should I expect when applying for urgent parenting orders?
Here’s what the process typically looks like from a parent’s point of view:
1. Explain what is happening and why it cannot wait
Your lawyer will need to understand the immediate problem, when it arose and what you believe will happen if nothing is done.
You may be asked to provide relevant material such as messages, emails, travel plans, police documents, medical information, existing parenting orders or a current family violence order.
2. You will usually need to provide a written statement
An affidavit is a written statement setting out the facts you rely on. Your lawyer will generally prepare it from the information you provide, then ask you to check that it’s accurate before you sign it.
Where child abuse, family violence, or other risks are alleged, the Court requires particular supporting documents. Your lawyer can prepare and file these, along with the request explaining why the case should be treated as urgent.
Parents will generally need to attempt family dispute resolution (FDR) before applying for parenting orders. However, there are exceptions. For example, an exemption may be available where the matter is urgent, or where there are reasonable grounds to believe that child abuse or family violence has occurred, or that a delay in applying to the Court would expose a child to a risk of abuse.
3. The Court reviews the request for urgency
When you file a new parenting application, it is given a first court date and a Registrar considers the urgency as a priority.
If the Court accepts that the matter is urgent, that date can be brought forward depending on the circumstances and the hearing time available. You will then be told when to attend court and whether anything further is needed in preparation for the hearing.
Does the other parent have to be notified about applying for urgent parenting orders?
Yes, the other parent is usually given notice of the application for urgent parenting orders, so they have a chance to respond.
In an extremely urgent situation, however, the Court can make an order without notice, sometimes called an ex parte order. This allows the Court to act before the other parent is notified that the application has been made.
These orders are rare, because the Court will usually want to hear from both parents before deciding. If you’re asking for an order without notice, you will need to explain why even short notice to the other parent – not just no notice – wouldn’t adequately protect the child or address the immediate risk.
For example, in Arlotti & Arlotti [2024] FedCFamC1F 360, the Court made parenting orders without notice after the other parent was taken into custody on criminal charges, with allegations of threats made against the applicant. Even so, the Court only made the orders it considered necessary, and arranged for the other parent to be served so the matter could return to Court.
When you’re seeking an order without notice, you must disclose all relevant information to the Court, including information that may not support your case. Any order made this way is also temporary and it only operates until a specified time, or the next hearing, when the other parent gets to be heard.
What if my child may be taken overseas before the Court opens?
If there’s a real risk that a child will be removed from Australia before the next working day, you can contact the Court through an emergency after-hours service.
Call 1300 352 000 and you’ll be referred to the emergency service.
The Court can also make orders preventing a child from leaving Australia and can ask the Australian Federal Police to place the child’s name on the Family Law Watchlist.
If you or your child is in immediate danger, call 000.
Acting early can make a difference
In an urgent parenting matter, it is important to clearly articulate what is happening and what may occur if the Court does not intervene promptly. Obtaining legal advice at an early stage can help determine whether an urgent application is appropriate and ensure that the Court has the information it needs to properly assess the circumstances and any potential risk to the child.
Contact Us
Our family lawyers can assess your circumstances, advise whether an urgent application may be appropriate and promptly prepare the necessary evidence and court documents on your behalf. If you need legal assistance in relation to an urgent parenting matter please contact our family law team in North Sydney on (02) 9963 9800 or through our contact page.