In February of this year Mostyn J in JM v CZ  EWHC 1125 (Fam) provided useful guidance as to the general principles that apply to without notice applications under part IV of the Family Law Act 1996.
The application before him was to discharge an ex parte non molestation order made for the period of a year “unless before then it is varied or revoked by the court”. The respondent was given permission to apply on 48 hours’ notice to the applicant, and a further hearing was listed on 16 May 2014, just under six months from the date of the original order, for reconsideration.
This order was made by a District Judge pursuant to the general practice at the Principal Registry of the Family Division, which is not to list a full inter parties hearing, as the respondent more often than not does not attend resulting in a waste of judicial resources as well as an inconvenience to the applicant.
A without notice non molestation order is made to section 45 of the Family Law Act 1996. By subsection (1), the court may make such an order where it is “just and convenient to do so”. By subsection (2), in considering whether to exercise its powers to make an order ex parte, the court must have regard to all of the circumstances including:
“(a) any risk of significant harm to the applicant or a relevant child, attributable to conduct of the respondent, if the order is not made immediately;
“(b) whether it is likely that the applicant will be deterred or prevented from pursuing the application if an order is not made immediately; and
“(c) whether there is reason to believe that the respondent is aware of the proceedings but is deliberately evading service and that the applicant or a relevant child will be seriously prejudiced by the delay involved…in effecting substituted service…”
By subsection (3), which Mostyn J found to be of key importance: “If the court makes an order by virtue of subsection (1) it must afford the respondent an opportunity to make representations relating to the order as soon as just and convenient at a full hearing.”
Mostyn J concluded that subsection (3) requires a full inter parties hearing very shortly after the ex parte order is made. He felt that merely granting the respondent liberty to apply for such a hearing does not satisfy that provision. He cited the view of the editors of Family Court Practice 2013 in support. They set out
“Whenever an order has been made ex parte, there must be a full hearing as soon as just and convenient thereafter. There are no circumstances in English law in which it is appropriate to make an ex parte order without provision for review once an order has been served. Any such order would be unlawful. It is the duty of the court to list for a full hearing, as required by section 45…”
Mostyn J concluded that the District Judge had made the wrong order. He was aware of the usual practice in the Principal Registry but concluded that there was a danger that this “sacrifices principle on the alter of expediency.”
As part of the application before him Mostyn J asked leading counsel for suggestions as to the appropriate way forward. Mr Chamberlayne QC suggested that the return date should be listed 14 days after the initial ex parte order with the proviso that the respondent ought to confirm in writing, seven days before the return date, both to the applicant and to the court, whether he in fact wished to attend on the return date and to argue for variation or discharge of the order; and that if the respondent failed to do this, then it would be open to the applicant to notify the court that the return date should be vacated and to invite the court to extend the injunction as a matter of box work.
In Mostyn J view if this procedure were to be adopted court resources would be preserved and at the same time a respondent who wished to have a full hearing, to which section 45(3) entitles him, would be able to have one.
Mostyn J then considered the general principles that should apply to ex parte application made in Part IV proceedings:
(a) UL v BK (Freezing Orders: Safeguards: Standard Examples)  EWHC 1735 (Fam) applies fully to proceedings under Part IV of the Family Law Act.
(b) An application for ex parte relief could only be justified where the matter was one of “exceptional urgency” and that, at the very least, “short informal notice must be given to the respondent unless it is essential that he [or she] is not made aware of the application”.
(c) No notice at all would only be justified where there is powerful evidence that the giving of any notice would likely lead the respondent to take steps to defeat the purpose of the injunction, or where there is literally no time to give any notice before the order is required to prevent the threatened wrongful act.
(d) Cases where no notice at all can be justified are very rare indeed. The order of the court should record on its face the reason why it was satisfied that no or short notice was given…”
(e) Where no notice, or short informal notice, is given the applicant is fixed with a high duty of candour. Breach of that duty will likely lead to a discharge of the order.
(f) If an ex parte order has been discharged because of, say, lack of candour or because notice ought to have been given but it is clear that the applicant is in need of protection, it would not be right, and it would be unjust, to refuse to re grant the application.
William Hillier is a member of the Family Law team at Magdalen Chambers