Separated couples unable to resolve matters regarding parenting and finances through mutual agreement can apply for interim orders in the Federal Circuit and Family Court of Australia (FCFCOA). This is the new Family Law Court, a recent amalgamation of the Federal Circuit Court and Family Court of Australia. The FCFCOA deals with a range of Family Law cases from straight forward to more serious and complex parenting and financial cases.
Interim orders are “temporary orders” and usually made as a matter of urgency to determine parenting and financial matters until the final hearing.
Although interim orders are temporary, it is important to ensure you understand your rights and entitlements regarding parenting and property arrangements as a status quo is sometimes set by interim orders.
What are interim orders?
Parties have the option to apply for interim orders as there is a general waiting period of up to 12 months or longer for a final hearing where final orders (i.e. permanent arrangements and outcomes) are made. As such, interim orders are “temporary” orders that are required for urgent matters, mainly regarding the care of children and to address any urgent financial and living arrangements.
We strongly recommend you speak with one of our family lawyers who can provide you with advice tailored to your situation.
How do I get interim orders?
Before making an application for parenting proceedings, parties must first attempt Family Dispute Resolution (FDR) with a mediator, unless there is history of family violence or child abuse. If no agreement regarding parenting is reached during FDR, or if one of the parties does not participate, the parties will need to apply for interim orders.
When applying for interim orders regarding a parenting application, an Affidavit and a Notice of Risk is required to be filed with your application. You must also file a 60i Certificate with your application for interim parenting orders.
If you are making an application for financial interim orders, you must submit an Affidavit and a Financial Statement with your application.
A fee will need to be paid at the time an application for interim orders is lodged.
Interim hearings usually take place between 2-3 months after an Initiating Application is filed.
Even if the other party has filed an application for an interim order first, you may still file your own application through a Response. Once your Response has been submitted, you will be in the same position as the other party and both applications will be considered at the earliest opportunity. An interim hearing may also be used to obtain the following types of Orders:
- Drug testing;
- Recovery Order;
- Restraints on certain behaviours;
- Appointment of an Independent Children’s Lawyer.
There is a lot of work involved in preparing an application for interim orders. To ensure you have included all necessary documents and information for your application and that you have drafted your affidavit correctly, we strongly advise you speak with one of our experienced family lawyers.
What happens during an interim hearing?
In interim hearings, courts do not make rulings on disputed facts because the evidence presented cannot be tested by cross examination. Courts make interim orders based on respective applications, affidavits, relevant reports and/or submissions made by both parties. Interim hearings are generally heard in less than two hours unless there are special circumstances which can cause the hearing to go over 2 hours.
Parenting/custody matters
An interim order for parenting may include the following;
- who the children of the relationship will reside with;
- the amount of time the children will spend with each parent and other people, such as grandparents;
- details of parental responsibility;
- how children will communicate with the parent they do not live with (including other people);
- any other factors related to the care, welfare or development of children.
When determining the above, the court will consider what is in the “best interests of the children.”
Property matters and spousal maintenance
An interim property settlement (also referred to as “partial property settlement”) can often be categorised as an “advance” on what a party is likely to receive in a final property settlement. Interim property orders usually provide for funds to be used by one of the parties after separation. These funds may be used for whatever purpose the party seeking the interim order chooses, such as purchasing a property, car, paying legal expenses or sometimes for day to day living expenses. It is important to keep in mind that the funds allocated in the interim property order may be treated as part of what that party will receive in the final property settlement, i.e. these funds may be deducted from the final property settlement or properly assessed/considered at a final hearing.
An interim hearing can also deal with the issue of spousal maintenance where one party does not have the ability to support themselves for their day to day reasonable expenses. A party in need may include an application for spousal maintenance payments as part of their interim application.
There are many factors to consider in such an application and again we strongly recommend you speak with one of our expert lawyers to address your specific situation.
Conclusion
Interim orders are made as a temporary, urgent solution to a separated couples’ parenting and financial situation. At the final hearing, the court will examine all evidence, listen to cross-examination of the parties, and will then make final orders.
If a party wishes to apply for parenting orders, they must attempt ADR before doing so.
Considering the lengthy delays experienced in the Family Law Court, interim orders often remain in place for a long time. This means they can sometimes have an impact upon the final orders that may be made by the court, so it is crucial to seek advice from an experienced family lawyer who can ensure that proper time, care and effort has gone into preparing and presenting your case at the interim hearing.
If you or someone you know wants more information or needs help or advice, please contact us on 1300 110 080 or email [email protected].