The process of going through a divorce court can be emotionally challenging, especially when children are involved. At Testart Family Lawyers, we acknowledge and understand the complexities of family law proceedings and aim to explore the distinctions between final orders and interim orders, providing you with valuable insights to smoothly navigate through this legal process with your children’s best interests at heart.
What Is the Difference Between Final Orders and Interim Orders?
When families are involved in Court proceedings, the Court may make interim orders. Interim orders are usually made when there is an urgent issue to be dealt with or for temporary matters. A Court will then make final orders after a contested hearing (or “final trial”) unless parties have agreed to orders by consent prior to a matter proceeding to trial.
When Court proceedings are commenced, the party filing the Court application for orders sets out if they are seeking interim and final orders or just final orders. If the party is seeking interim orders, the Court will generally proceed the matter to an interim hearing. When one party files an application, the other parties to proceedings are required to file a response.
Interim orders for parenting matters could include:
- an application for the appointment of a Single Expert Witness;
- an application for a family report writer; or
- for a child to attend a particular therapist.
If there are concerns regarding a child’s welfare, an interim order can be granted by the court covering various aspects such as:
- Child Safety: An interim order may restrict one parent from taking a child out of their country, state or local area ensuring immediate safety.
- Protection from Domestic Violence: To protect children from potential domestic violence or imminent danger, an interim order may be issued by the court.
- Communication with Non-Custodial Parent: Interim orders guarantee sufficient communication between non-custodial parents and their children.
- Time with Extended Family: They can determine how much time a child spends with significant family members, including grandparents or new partners.
When interim orders are granted, the Family Court operates with “the best interests of the child” as their guiding principle. This approach assists the court in determining which services and actions will benefit children in the long run while minimizing potential harm or neglect they may face. They can include travel restrictions to prevent one parent from removing the child from a specific location, ensuring the child’s safety and protection through child protection orders, specifying communication patterns between the child and the non-custodial parent through communication arrangements, determining the time spent with extended family, and assigning decision-making responsibilities for the child’s health, education, and welfare through parental responsibility orders.
Interim orders for property matters could include:
- an application for the appointment of a valuer to value a business or real estate; or
- for interim spousal maintenance.
Final Orders
Final orders for both parenting and property matters are the ultimate outcome the parties are seeking.
For final orders, if all parties agree, they can apply for consent orders which legally formalise their agreed-upon terms. However, these and final orders are extremely difficult to change once finalised. You must show there has been a significant change of circumstances that makes a change necessary. In instances where there is a substantial alteration in either the original agreement or in relation to where and how the child concretely resides at present, the court will duly take these changes into consideration prior to making any decisions.
What happens at a Family Court interim hearing?
When you initiate a legal proceeding in the Federal Circuit and Family Court of Australia, it is common for an interim hearing to be scheduled within three months of filing your application. In urgent cases, the hearing may even take place earlier.
Unlike a final trial, an interim hearing does not involve cross-examination of witnesses. Instead, the Court primarily relies on written material, commonly referred to as “the papers.” Consequently, the Court is unable to establish any findings of fact during this stage. However, an interim hearing serves as an opportunity for the Court to address specific issues that cannot wait until the final trial.
Following the interim hearing, the Court aims to make orders that advance the case towards trial. These orders often facilitate the parties in narrowing the scope of their dispute and ensure the Court has the necessary evidence for a final hearing, such as reports from Single Expert Witnesses. This step helps streamline the legal process and promotes an efficient resolution of the matter.
How Do I Prepare For An Interim Hearing?
To maximise your chances of success at an interim hearing, it is essential to draft a well-prepared affidavit. This document represents the evidence upon which the Court will rely when making the orders you are seeking. The person responsible for drafting the affidavit must possess a comprehensive understanding of the relevant material pertaining to the dispute, the evidence required by the Court, and the principles of admissibility.
Ensure Evidence Is Admissible
It is crucial to avoid including hearsay, conclusions, or submissions in your affidavit material. If the Court identifies such elements, it may strike them out and deem them inadmissible. Therefore, the drafting of affidavit material requires skilful execution to present a strong case and increase the likelihood of obtaining the desired orders.
Seek Legal Advice
Before submitting any documents to the Court or advocating as an in-person litigant at an interim hearing, it is strongly recommended to seek legal advice. Consulting with experienced professionals can provide you with invaluable guidance throughout the process. Our team has extensive experience in drafting applications and representing clients at interim hearings for family law matters. We are here to support you and help you navigate the complexities of the legal system.
Interim hearings play a significant role in family law matters, allowing the Court to address urgent issues and progress the case towards trial. By understanding the purpose of an interim hearing, preparing a well-drafted affidavit, and seeking legal advice, you can position yourself favourably and increase the chances of achieving your desired outcome. Remember, we are here to assist you every step of the way, providing the expertise and support you need during this challenging time.
