Unless the matter is urgent, it is first heard four to six weeks after the application was filed. The parties can represent themselves, and anyone over the age of 18 years can attend.
In certain emergency situations - for example, when one parent fails to return the child to the other parent in accordance with a court order, parenting plan or the child’s long term living arrangements - an application for an urgent hearing can be made.
Limited police involvement
In these cases it should be noted that, even if the other party is breaching existing court orders, the police will not get involved unless there is another court order authorising them to do so. If you are concerned about a child’s welfare you can ask the police to check on the child, but usually they cannot do more than that without the court specifically authorising them to. You therefore need to apply for an urgent hearing.
The application must be filed with the court and served on the other party immediately, and the matter is heard as soon as possible.
Applications forms and what orders to ask for
If there are no current court proceedings, you need to use an Initiating application form. Most new family law applications go to the Federal Circuit Court. You will have to ask for final orders (for example, that the child lives with you) as well as interim orders. The interim orders you should ask for include an order that the application be heard urgently. Other orders you should seek could include orders that the other person return the child immediately; that the parties be restrained from changing the child’s place of residence and that the child’s name be added to the Airport Watch List. You will need to file an Affidavit with your application, in which you explain why the matter is urgent and why you are asking for those orders.
If there is already a case going through court, the form to use is Application in a case, together with an Affidavit.
Ex parte hearings
In cases of extreme urgency - for example, where it is feared that a child may be taken out of the country – you can ask the court to make an order before you have served the application on the other party. This means that the other party is not given notice of the hearing, so the hearing is held ex parte (in the absence of the other party). The court usually wants to hear from both parties, so ex parte orders are rarely made.
Passports and police warrants
As with any application, the court can order the surrender of passports (including the child's), and may issue a warrant to authorise the police to stop and search any vehicle, vessel or aircraft, or enter and search any premises, in order to take possession of a child.
To finalise a matter
Ordinarily, a matter takes about 18 months to progress from application to trial.
If the court is unable to hear the matter at the time it is listed for trial it may be put off for a further two or three months.
There is however provision for a matter to be listed for trial urgently in certain circumstances. The procedure is to write to the Judges Listing Committee requesting an urgent listing and setting out convincing reasons. Of course there is often a wide gap between the court's perception of urgency and that of the parents. If the Committee is satisfied that the case is urgent, they will give the matter an early pre hearing conference date leading to a trial in a much abbreviated time.
In general, an urgent trial listing should not be expected where the issue of urgency can be adequately addressed by interim orders addressing the situation until trial.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.