Division 5.4.2Search orders

## Part 5.1—General #### 5.01 Effect of final orders on interlocutory orders On the making of final orders in a proceeding, any interlocutory order made in the proceeding pending further order is automatically discharged and ceases to have continuing effect. #### 5.02 Restrictions on applications for interlocutory orders (1) Subject to subrule (2), a party may apply for an interlocutory order in a proceeding. (2) A person may apply for an interlocutory order only if the order sought relates to a current proceeding, unless the person is seeking: (a) permission to start a proceeding or extend a time limit to start a proceeding; or (b) to be appointed as a litigation guardian for a person under rule 3.15; or (c) to vary or set aside an order under rule 10.13 (other than a final order under paragraph 10.13(1)(b)); or (d) an order for costs. (3) This rule does not apply to restrict the filing of an Application in a Proceeding by: (a) an independent children’s lawyer; or (b) the Director of Public Prosecutions, when making an application under section 79C, 79D, 90N, 90P, 90VB or 90VC of the Family Law Act, to stay or lift a stay of a property settlement or spousal or de facto maintenance proceeding; or (c) a bankruptcy trustee; or (d) a trustee of a personal insolvency agreement. (4) This rule does not apply to restrict the filing of an application for an order in relation to an arbitration by a party to the arbitration or an arbitrator conducting the arbitration. > Note 1: Unless an exception applies, a party must make a reasonable and genuine attempt to settle the issue to which an interlocutory application relates, before filing the application (see rule 4.03). > Note 2: An application for an interlocutory order must be made using the form required by rule 2.01. #### 5.03 Time for applications seeking parenting orders for end‑of‑year school holiday period (1) This rule applies to an application for an interim parenting order relating in whole or part to the school holiday period beginning in December in a year (the application year) and extending to January in the following year. (2) The application must be filed before 4 pm on the second Friday in November of the application year. > Note: Except in cases of urgency (where the usual criteria for an urgent hearing will apply), an application filed after the deadline under subrule (2) will be allocated the next available hearing date in the usual way. That date may be after Christmas. In other words, if the deadline has passed, the fact that an application relates to the school holiday period will not of itself justify a listing before Christmas. In urgent cases, applications to abridge times and to list a matter on short notice may be made to the registry. #### 5.04 Supporting affidavit to be filed with application (1) A party who applies for one or more interlocutory orders must, at the same time, file and serve an affidavit stating the facts relied on in support of the orders sought. (2) Subrule (1) does not apply to an application for review of an order of a Judicial Registrar. #### 5.05 Responding to an Application in a Proceeding (1) A respondent to an Application in a Proceeding who seeks to oppose the application, or seeks different orders, must file and serve a Response to an Application in a Proceeding. (2) A respondent who files and serves a Response to an Application in a Proceeding must, at the same time, file and serve an affidavit stating the facts relied on in support of the Response. > Note: A Response to an Application in a Proceeding must be filed and served within 28 days after service of the application to which it relates (see subrule 2.18(2)). #### 5.06 When affidavit in reply to a response may be filed (1) If: (a) a respondent files and serves a Response to an Application in a Proceeding seeking orders in a cause of action not referred to in the Application in a Proceeding; and (b) the applicant opposes the orders sought in the Response to an Application in a Proceeding; the applicant may file and serve an affidavit in reply setting out the facts relied on. (2) In this rule: > cause of action includes a claim seeking an order for interlocutory relief. #### 5.07 Time for filing affidavits Each affidavit in support of or in opposition to an interlocutory application must be filed and served at least 2 business days before the date fixed for the hearing. #### 5.08 Limit on number and length of affidavits (1) The following affidavits may be relied on as evidence in chief at the hearing of an application for interlocutory orders: (a) subject to rule 5.06, one affidavit by each party; (b) one affidavit by each witness, provided the evidence is relevant and cannot be given by a party. (2) Unless express leave is granted by the court, an affidavit filed and served in support of or in opposition to an application for interlocutory orders must not exceed 25 pages. (3) Unless express leave is granted by the court, an affidavit filed and served in support of or in opposition to an application for interlocutory orders must not contain more than 10 annexures. #### 5.09 Duration of hearing of interlocutory application (1) Unless the court directs otherwise, the hearing of an application for interlocutory orders must be no longer than 2 hours. (2) Cross‑examination will be allowed at a hearing only in exceptional circumstances. #### 5.10 Administrative postponement of interlocutory hearing (1) If the parties agree that the hearing of an application for interlocutory orders should not proceed on the date fixed for the hearing, the parties may request the Registry Manager to postpone it. (2) A request must: (a) be in writing; and (b) specify why it is appropriate to postpone the hearing; and (c) specify the date to which the hearing is sought to be postponed; and (d) be signed by each party or the party’s lawyer; and (e) be received by the Registry Manager no later than 12 noon on the day before the date fixed for the hearing. (3) If a request is made, the Registry Manager must tell the parties: (a) whether the hearing has been postponed; and (b) if applicable, the date to which the hearing has been postponed. ## Part 5.2—Applications without notice #### 5.11 Applications without notice An applicant seeking that an interlocutory order be made without notice to the respondent must: (a) satisfy the court about why: (i) shortening the time for service of the application and the fixing of an early date for hearing after service would not be more appropriate; and (ii) an order should be made without notice to the other party; and (b) in an affidavit or orally, with the court’s permission, make full and frank disclosure of all the facts relevant to the application, including the following: (i) whether there is a history or allegation of child abuse or family violence between the parties; (ii) whether there have been any previous proceedings between the parties and, if so, the nature of the proceedings; (iii) the particulars of any orders currently in force between the parties; (iv) whether there has been a breach of a previous order by either party to the proceeding; (v) whether the respondent or the respondent’s lawyer has been told of the intention to make the application; (vi) whether there is likely to be any hardship, danger or prejudice to the respondent, a child or a third party if the order is made; (vii) the capacity of the applicant to give an undertaking as to damages; (viii) the nature of the damage or harm that may result if the order is not made; (ix) why the order must be urgently made; (x) the last known address or address for service of the other party. #### 5.12 Necessary procedural orders If the court makes an order on application without notice, the order must be expressed to operate: (a) until a time specified in the order; or (b) if the hearing of the application is adjourned—until the date of the hearing. ## Part 5.3—Hearing on papers in absence of parties without oral hearing #### 5.13 Decisions in the absence of the parties without an oral hearing The court may determine an application for an interlocutory order in the absence of the parties without an oral hearing if: (a) the parties to the application consent to the making of the decision in their absence without an oral hearing; and (b) the court considers it appropriate to make the decision in the absence of the parties without an oral hearing. > Note: This Part also applies to an application in relation to an appeal (see rule 13.38). #### 5.14 Court decision to require attendance Despite parties consenting to a hearing being held in their absence without an oral hearing, the court may: (a) postpone or adjourn the application; and (b) fix a new date for hearing the application; and (c) require the parties to attend court for the hearing. #### 5.15 Procedure for hearing in absence of parties without an oral hearing (1) If an application is to be determined in the absence of the parties without an oral hearing, each party must file and serve, at least 2 days before the date fixed for hearing the application: (a) a list of documents to be read by the court; and (b) a supporting submission. (2) A supporting submission must: (a) state the reasons why the orders sought by that party should be made; and (b) refer to any material in a document filed and served with the application by the page number of the document, and not repeat the text of that material; and (c) not be more than 5 pages; and (d) have all paragraphs consecutively numbered; and (e) be signed by the party or the lawyer who prepared the submission; and (f) include the signatory’s name and email address and telephone number at which the signatory can be contacted. ## Part 5.4—Applications in relation to property ### Division 5.4.1—Orders for inspection, etc, of property #### 5.16 Orders about property (1) The court may make an order for the inspection, detention, possession, valuation, insurance or preservation of property if: (a) the order relates to the property of a party, or a question may arise about the property in a proceeding; and (b) the order is necessary to allow the proper determination of a proceeding. (2) The court may order a party: (a) to sell or otherwise dispose of property that will deteriorate, decay or spoil; and (b) to deal with the proceeds of the sale or disposal in a certain way. (3) A party may ask the court to make an order in relation to property authorising a person: (a) to enter, or do another thing to gain entry or access to, the property; or (b) to make observations, and take photographs, of the property; or (c) to observe or read images or information contained in the property including, for example, playing a tape, film or disk, or accessing computer files; or (d) to copy the property or information contained in the property. (4) If the court makes an order under this rule, it may also order a party to pay the costs of a person who is not a party to the proceeding and who must comply with the order. (5) The court may make an order under subrule (1) binding on, or otherwise affecting, a person who is not a party to a proceeding. #### 5.17 Service of application (1) A party who has applied for an order under rule 5.16 must: (a) make a reasonable attempt to find out who has, or claims to have, an interest in the property to which the application relates; and (b) serve the application and any supporting affidavits on that person. (2) The court may allow an application for an order under this Division to be made without notice. #### 5.18 Inspection by court A party may apply for an order that the court inspect a place, process or thing, or witness a demonstration, about a question that arises in a proceeding. ### Division 5.4.2—Search orders #### 5.19 Application for search order (1) A party may apply for an order (in this Division called a search order): (a) requiring a respondent to permit the applicant, alone or with another person, to enter the respondent’s premises and do either or both of the following: (i) inspect or seize documents or other property; (ii) take copies of documents; and (b) requiring the respondent to disclose specific information relevant to the proceeding; and (c) restraining the respondent, for a specified period of no more than 7 days, from informing anyone else (other than the respondent’s lawyer) that the order has been made. (2) The applicant may apply for a search order without notice to the respondent. (3) An application for a search order must be supported by an affidavit that includes the following: (a) a description of the document or property to be seized or inspected; (b) the address of the premises where the order is to be carried out; (c) the reason the applicant believes the respondent may remove, destroy or alter the document or property unless the order is made; (d) a statement about the damage the applicant is likely to suffer if the order is not made; (e) a statement about the value of the property to be seized; (f) the name of the person (if any) who the applicant wishes to accompany the applicant to the respondent’s premises if permission is granted; (g) the consent of one or more lawyers to act as independent lawyers for the purposes of rule 5.21; (h) the fees proposed to be charged by the independent lawyers. (4) If a search order is made, the applicant must serve a copy of it on the respondent when the order is acted on. #### 5.20 Requirements for grant of search order The court may make a search order if the court is satisfied that: (a) an applicant seeking the order has a strong prima facie case on an application for final orders; and (b) the potential or actual loss and damage to the applicant will be serious if the search order is not made; and (c) there is sufficient evidence in relation to a respondent that: (i) the respondent possesses important evidentiary material; and (ii) there is a real possibility that the respondent might destroy such material or cause it to be unavailable for use in evidence in a proceeding or anticipated proceeding before the court. #### 5.21 Independent lawyers (1) If the court makes a search order, the court must appoint one or more lawyers (the independent lawyers), each of whom is independent of the applicant’s lawyer: (a) to supervise the execution of the order; and (b) to do any other acts or things in relation to the order that the court considers appropriate. (2) The court may appoint an independent lawyer to supervise execution of the order at any one or more premises, and a different independent lawyer or lawyers to supervise execution of the order at other premises, with each independent lawyer having power to do any other acts or things in relation to the order that the court considers appropriate. #### 5.22 Costs (1) The court may make any order for costs that it considers appropriate in relation to an order made under this Division. (2) Without limiting subrule (1), an order for costs includes: (a) an order for the costs of any person affected by a search order; and (b) an order for the costs of any independent lawyer. ### Division 5.4.3—Freezing orders #### 5.23 Application for freezing order (1) A party may apply for an order (in this Division called a freezing order) restraining another person from removing property from Australia, or dealing with property in or outside Australia, if: (a) the order will be incidental to an existing or prospective order made in favour of the applicant; or (b) the applicant has an existing or prospective claim that is able to be decided in Australia. (2) The applicant may apply for a freezing order without notice to the respondent. (3) An application for a freezing order must be supported by an affidavit that includes the following: (a) a description of the nature and value of the respondent’s property, so far as it is known to the applicant, in and outside Australia; (b) the reason why the applicant believes: (i) property of the respondent may be removed from Australia or may be dealt with in or outside Australia; and (ii) removing or dealing with the property should be restrained by order; (c) a statement about the damage the applicant is likely to suffer if the order is not made; (d) a statement about the identity of anyone, other than the respondent, who may be affected by the order and how the person may be affected; (e) if the application is made under paragraph (1)(b)—the following information about the claim: (i) the basis of the claim; (ii) the amount of the claim; (iii) if the application is made without notice to the respondent—a possible response to the claim. #### 5.24 Ancillary orders (1) The court may make an order (an ancillary order) ancillary to a freezing order or prospective freezing order as the court considers appropriate. (2) Without limiting subrule (1), an ancillary order may be made for either or both of the following purposes: (a) eliciting information relating to assets relevant to the freezing order or prospective freezing order; (b) determining whether the freezing order should be made. #### 5.25 Order may be against a person not a party to proceeding The court may make a freezing order, or an ancillary order under rule 5.24, against a person even if the person is not a party to a proceeding in which substantive relief is sought against the respondent. #### 5.26 Costs (1) The court may make any order as to costs it considers appropriate in relation to an order made under this Division. (2) Without limiting subrule (2), an order as to costs includes an order as to the costs of any person affected by a freezing order or an ancillary order under rule 5.24. ## Part 5.5—Applications for suppression or non‑publication orders #### 5.27 Application for suppression or non‑publication order An applicant for an order to suppress publication of a judgment must file and serve an affidavit that sets out evidence relating to the following: (a) the public interest in suppressing or not suppressing publication; (b) why further anonymisation of the judgment would not be sufficient; (c) whether publication of the entire judgment should be suppressed or only part of the judgment; (d) whether publication should be suppressed in one medium or in all media; (e) whether a summary of the judgment should be made publicly available if publication of the judgment is suppressed; (f) one or more grounds, referred to in subsection 102PF(1) of the Family Law Act, on which the application is made. > Note: All published judgments in family law proceedings are anonymised in accordance with the requirements of section 114Q of the Family Law Act. ## Part 5.6—Consent orders #### 5.28 Application for order by consent (1) The parties to a proceeding may apply for an order in terms of an agreement reached about a matter in dispute in the proceeding: (a) by lodging a draft consent order; or (b) by tendering a draft consent order to a judicial officer during a court event; or (c) orally, during a court hearing or trial. (2) A draft consent order must state that it is made by consent and must be signed by each party or the party’s legal representative. (3) If the litigation guardian of a party seeks a consent order (other than an order relating to practice or procedure), the litigation guardian must file an affidavit setting out the facts relied on to satisfy the court that the order is in the party’s best interests. #### 5.29 Consent parenting orders and allegations of child abuse, family violence or other risks of harm to children (1) This rule applies if an application is made to the court for an interlocutory parenting order by consent, unless the order is procedural only. (2) The parties to the application must comply with Division 2.2.1. (3) The parties must advise the court whether or not any allegations have been made in the proceeding of child abuse, family violence, or any risk of harm to a child in relation to whom the order is sought. (4) Each party must also advise the court, apart from any allegation made in the proceeding: (a) whether the party considers that the child concerned has been, or is at risk of being, subjected or exposed to abuse, neglect or family violence; and (b) whether the party considers that the party, or another party to the proceedings, has been, or is at risk of being, subjected to family violence. (5) If an allegation referred to in subrule (3) has been made, or a party advises the court of any concerns referred to in subrule (4), the parties must explain to the court how the proposed parenting order attempts to deal with the allegation or concern. (6) The parties may comply with subrules (3) to (5): (a) if a draft parenting order is lodged or is tendered to a judicial officer during a court event—by attaching to the draft parenting order the approved form for the purposes of this paragraph signed by each party or their legal representative; or (b) if the application is made orally during a court event—by each party or the party’s legal representative advising the court of the required matters orally; or (c) if the application for the parenting order is to be considered in chambers—by each party attaching to the draft parenting order the approved form for the purposes of this paragraph signed by each party or the party’s legal representative.