When you’re going through a divorce and negotiating settlement of matters regarding property and parenting issues, it’s sometimes necessary to obtain interim orders from a court, because it can take years to have final orders put in place.
Interim orders are legally-binding orders which provide temporary clarification of property and parenting issues, helping you and your ex-partner navigate co-parenting and property division while the legal process is still in train. Where children are involved, interim orders are a way of implementing temporary care arrangements for the children while waiting for the matter to be finalised.
The courts grant interim orders where it is deemed necessary, and these last until parties reach an agreement as to the final orders or final orders are made by the Judge after the conclusion of a trial.
Interim orders are very important. Particularly with the delays in the family court system, interim orders can be in place for a lengthy period of time so it’s vital to get them right for the child. In actual fact, interim orders themselves can influence the outcome of final orders, because the effect of change to a child’s circumstances is considered to be relevant (see section 60CC(3)(d) of the Family Law Act 1975). And a child whose interim orders have been in place for years may be well settled in their life, with a court then reluctant to disrupt their circumstances without good reason.
The main difference between interim hearings and final hearings is that a court cannot make rulings on disputed facts in an interim hearing, because the evidence cannot be tested and parties cross-examined at that stage. Instead, the court makes interim orders utilising the information contained in applications, affidavits, reports and other relevant submissions made by parties and potentially acting conservatively where there are allegations of abuse or family violence.
Interim orders about parenting matters can deal with the following matters on a temporary basis:
- Details of who has responsibility for decision-making regarding a child’s health, education, welfare and other issues of importance.
- Who the child should live with and how they will spend time with the other parent.
- Whether the child should be prevented from being in the presence of specific people if there is a risk (eg new partners).
- How the child will communicate with each parent while in the care of the other parent.
- How the child will be protected from family violence or other risks.
- Whether the child is to be restrained from being taken out of the country, state or even local area.
- Any other orders the court deems appropriate in relation to the child’s care or the parent’s responsibilities.
The aim is to create stability in a child’s life during the protracted legal process. Interim orders are court-enforceable and remain in place until final orders are made (either by agreement between parties or by judgment of the court at the final hearing). For property matters, interim orders may be made to protect or sell assets or direct one party to make payments towards a liability that is outstanding.
To apply for interim orders, it’s necessary to also apply for final orders in your Initiating Application.
However, the court may not grant the orders you request. The orders will only be granted after the court considers the specific facts of your case and makes parenting orders that are in the best interests of a child, and in financial cases, orders with terms that are just and equitable.
It can be a complex process to ask a court for orders and getting expert legal advice is essential to protect your interests. We recommend you discuss the appropriateness of seeking interim orders in your situation with an experienced family lawyer, to ensure the most persuasive presentation of your case as possible. We can help with all aspects of your application including supporting and related documentation and paperwork and guide you through each step of the process.
Read the Family Court factsheet on Orders here.
You can also read also the Attorney-General’s handbook on Parenting Orders here.
Also, you might like to read our blog on Hogan/Barro orders, which can help financially weaker parties with the costs of litigation.
Would you like assistance obtaining interim orders or advice on another family law matter? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.
