Role of the Federal Circuit and Family Court of Australia
In an ideal world, families would be able to communicate effectively in any situation, even during separation. In the real world, many families who go through separation do need the assistance of an outside authority to help them resolve conflicts or reach agreement. The Federal Circuit and Family Court of Australia is the authority that helps Australian families in this situation, using the Family Law Act 1975 (Cth) as a guide.
Under this legislation, the Family Court has the power to order final outcomes in relation to property or parenting matters (or both):
- A final outcome in relation to property will result in final orders dictating how a separating couple divide assets and liabilities.
- A final outcome in relation to parenting will result in final orders for how parents will share responsibility and physical care for minor children.
Unfortunately, it can be several years before a Court can resolve property or parenting matters on a final basis. This long delay can be the result any number of factors, including:
- the complexity of the situation itself;
- postponement while either party assembles evidence or obtains expert assessments; and
- the busy schedule of the Court itself.
The inevitable result is that families find themselves in an uncertain position, waiting for final outcomes but needing to get on with the business of living in the meantime.
It is during this waiting period that you may require an interim hearing.
What is an interim hearing?
An interim hearing is a procedural hearing that is part of a family court proceeding. An interim hearing most often happens a few months after an initiating application for final property or parenting orders is filed with the Federal Circuit and Family Court of Australia.
You can request an interim hearing when you require an urgent decision in relation to parenting or property. The aim in requesting an interim hearing is to obtain temporary orders that will be in place until final orders can be made by the Court.
There is a limit on the number of Interim orders that you can file, so you should only request an interim hearing for a significant issue.
How do interim orders work?
When you begin an application for parenting or property in the Federal Circuit and Family Court of Australia, your application must state whether you intend to seek interim orders as well as final orders. Either party can also request an interim hearing at any time during the court process prior to the final court date.
After you file an application for interim orders, the Court will set a date for a hearing to consider your application.
Differences between interim and final orders
Interim hearings are not intended to be a full consideration of every aspect of an issue. Rather, the aim is to have an efficient consideration by a Judge or Registrar of the most important facts to allow a reasonable short-term solution to be put in place. During an interim hearing, the Judge or Registrar will review all the filed material and hear submissions but will rarely permit cross-examination of witnesses.
What is the court looking for during interim hearings?
At an interim hearing, the Judge or Registrar will evaluate whether an interim order is necessary based on the facts and evidence that you put forward. If the situation cannot remain as it is until final orders are obtained, then the Court will make interim orders.
For interim parenting orders, you should explain why the interim orders are in the child’s best interest. For financial cases, the orders should be just and equitable.
When is an interim hearing required?
Interim Hearings most commonly occur when one party has concerns about what could happen before final orders are obtained. In particular, an interim hearing is necessary where there is family violence which need to be addressed urgently to ensure that children are safe.
For instance, in a parenting matter you may be concerned that your child will be physically or psychologically harmed by spending time with the other parent, or from the other parent’s behaviour. In this circumstance, you may seek an order that the children spend less time with the other parent, only see the parent in a supervised environment, or that the parent refrain from certain behaviours in the presence of the children.
Because you are worried about what is happening right now, it is appropriate to seek an interim order, rather than wait (potentially for years) for final orders.
Interim hearings in property matters
With respect to property matters, an interim order can establish how assets and liabilities will be managed while you wait for your final orders. For instance, you could obtain an interim order stating that you and your former spouse each continue to pay the mortgage on the family home until you receive final orders. Of course, it is preferable if you can reach an agreement about the payment of the mortgage without involving the Court. It is only if you cannot agree about what should be done, or the other person does not stick to the agreement, that you need to involve the Court on an interim basis.
One circumstance where you may really need an interim hearing in a property matter is when your former partner is not fully disclosing their assets. For instance, a former partner may simply refuse to respond to requests for information about their assets and debts, or they are only disclosing some assets and you suspect that they are concealing other assets.
Another urgent reason for an interim hearing in a property matter is if the other party is disposing of assets, such as selling real estate, giving away valuable property, or spending large sums of money in an unreasonable way. You can seek interim orders and an injunction to prevent this conduct from continuing.
You may also seek interim orders because your financial circumstances mean you cannot afford to pay for your cost of living and legal fees while you are waiting for your final order and you need to seek spousal maintenance.
Interim hearings in parenting matters
The Court can issue any order during Interim hearings on parenting matters that is in the best interests of the children while you are waiting to receive final orders.
Again, as with property, if you can agree on interim arrangements without seeking an order from the Court, this is generally preferable for everyone involved.
Otherwise, you may request an interim order if you believe that it is not safe and healthy for your children to spend unsupervised time with the other parent. The Court will always try to ensure that children maintain regular contact with both parents during a court process, but the Court can make more restrictive interim orders if it is in the best interests of the child. More commonly, an interim order can restrict both parents from certain actions, such as taking the children interstate, criticising the other parent in front of the children, or consuming alcohol and drugs.
The Court may also make orders requiring one or both parents to participate in regular drug testing, attend counselling, or see a professional such as a family consultant for the preparation of a family report.
My matter is listed for interim hearing – what do I do now?
If you need to obtain evidence from an organisation to show that your application is urgent, you can issue the organisation with a subpoena requesting that they produce that evidence to the Court.
For instance, if you are seeking an interim order for your children to spend less (or no) time with the other parent, then you could issue a subpoena to an organisation such as the Queensland Police Service to produce documents that demonstrate domestic violence. If there are witnesses to particular events they may write affidavits to support your submissions, rather than attending court for cross-examination.
Once all of this evidence has been supplied to the Court and you obtain leave, you may then seek to tender these records into evidence, in support of your position.
Preparing for your interim hearing
In the Federal Circuit and Family Court of Australia, your evidence is admitted through affidavits, which is a written account that is sworn in front of a qualified witness. As part of your interim hearing, you (or your solicitors) will need to write an affidavit that covers all of the important information that supports your request, and you swear to its truthfulness. You submit this affidavit in place of giving evidence in open Court.
Prior to the interim hearing, you (or your family lawyers) will also prepare a written outline of your submissions, which should include details such as the documents that you want the Judge or Registrar to read, a brief chronology, the agreed facts, and issues where you disagree.
You will also include a minute of proposed orders, which is basically a draft of the orders that you would like to Court to make.
Once all of this material is filed with the Court and served to the other side, and the matter is ready to progress to an interim hearing, you will be notified by the Court of the date of the hearing. In urgent circumstances, it is possible for this hearing to be held without the other party being present or having a chance to file material, but this is usually only the case when the Court is concerned about the risk of serious harm occurring if the matter is delayed.
How long is an interim hearing?
You should expect your interim hearing to take a few hours, although it could be over in only a few minutes. Interim hearings are rarely longer than two hours, as the intention is to move the matter quickly through the Court.
Appeals from interim hearings – practical and procedural issues
At the end of the interim hearing you may not receive the interim orders that you request. The Judge or Registrar may instead issue interim orders on the terms requested by the other party, or they may decline to issue any orders. It is natural to feel deflated if you do not receive your preferable result, and if you have genuine concern about the conduct of the other party it can result in a lot of anxiety about the future. The first instinct can be to say that you want to appeal the decision.
Of course, it is possible that the Judge or Registrar has genuinely made a mistake about the law in your case, and that you have grounds for appeal.
The best thing to do is to speak to your legal representative. If you do not have a solicitor, you may wish to speak to community legal services, or see if you can qualify for legal aid. If both you and your solicitor think the judge made an error under the law, you can file an appeal but it must be received within 28 days of the orders being made (or not made, as the case may be). Unless it is for a parenting matter, you will also need to seek leave from the Court to appeal the interim decision.
It is important to be aware that an unsuccessful appeal may result in significant delays in your case and may result in you having to pay another person’s legal costs.
What if the Interim Order is not Followed?
If the other party does not follow the interim orders, you can file a Contravention Application with the Court. From September 2021 the Federal Circuit and Family Law Court of Australia has a dedicated contravention list, which means that if you have a Court order and it is not followed by the other side, the Court has an efficient process to hear about the contravention and enforce the orders. In the past, contraventions were technical and quite complex applications, but the new contravention list makes it easier to enforce both interim and final Court orders.
Get legal advice
Any family court process can be an overwhelming journey. Every step of the way involves confusing and complex processes with jargon, procedures, delays and expense. Interim hearings are one example of the alien world that you encounter during a family law case. Unified Lawyers are able to help you to navigate through this journey towards a successful resolution without excessive delay.
“All materials throughout this entire website has been prepared by Unified Lawyers for informational purposes only. All materials throughout this entire website are not legal advice and should not be interpreted as legal advice. We do not guarantee that any of the information on this website is current or correct.
You should seek specialist legal advice or other professional advice about your specific circumstances.
All information on this site is not intended to create, and receipt of it does not constitute a lawyer-client relationship between you and Unified lawyers.
Information on this site is not updated regularly and so may not be up to date.”
