Interim v Final Parenting Orders

All parties to parenting proceedings in the Federal Circuit and Family Court must file an Application for Final Orders or a Response to the other party’s Application, setting out the orders they are asking the court to make. 

This incudes the orders they want the court to make on an interim basis and on a final basis. The court can make both interim and final parenting orders after a contested hearing or by agreement between the parties (consent orders).

Interim Orders

Interim Orders are temporary orders made by the court until Final Orders can be made. The nature of the family law system means that most parties will wait 12 months or longer for a Final Hearing. Therefore, parties often require parenting orders to be made prior to a Final Hearing.

Interim Parenting Orders often made by the court include the following:

• The allocation of decision making authority , including whether one parent has sole decision making authority for making decisions relating to the care, welfare and development of the children or whether decision making authority is to be equally shared between the parties;
• With which parent the children shall live and the amount of time they will spend with the other parent, including time during the week, on weekends, during special occasions and during the school holiday periods;
• The frequency of communication between the children and the parents;
• For the parties to attend upon a family consultant for the preparation of a family report;
• For a party to be restrained from doing something, for example, taking the children interstate;
• For a party to undergo drug testing; or
• For the parties to undertake and complete a post-separation parenting program.

When making orders relating to children, whether they are interim or final orders, the court must make orders that are in the best interests of the children.

Final Orders

Final orders conclude the proceedings and they are final. However, it should be noted that this does not mean that orders will necessarily last until the children turn 18. Both parents will always retain the capacity to apply for a change to the orders in the event that circumstances change. For example, if the orders are five years old, meaning the children are five years older than when the orders were made, then a parent may apply for further orders seeking that the children spend more time with them.

Orders cannot, however, be changed within 12 months of the date they were made, unless there has been a significant change in circumstances.

The types of final orders the court can make include orders for who has long-term decision-making authority, orders for with whom the children shall live and how often they will spend time with the other parent and how the parties are to communicate with the children.

What is the difference between an Interim Hearing and a Final Hearing?

An Interim Hearing is a shorter hearing to resolve short-term parenting issues (Interim parenting arrangements) and/or make procedural Orders to progress the matter (eg. drug testing Orders) whilst the case is still ongoing. 

The main evidentiary difference is that an Interim Hearing relies heavily on Affidavit evidence, which does not subject the deponent to cross-examination, and where the Court cannot make any formal findings of fact. Instead, the Judge assesses risk and decides what arrangements are safest and most appropriate until a final trial can occur.

Conversely, a Final Hearing involves tested evidence and formal factual findings on a final basis (subject to an appeal being lodged).

At Interim Hearing evidence is usually by affidavit only, witnesses are generally not cross-examined, the Court may consider evidence that is less complete or less strictly examined, the Judge avoids making definitive findings unless necessary and decisions are based more on risk management and preserving safety until trial. 

At a Final Hearing the witnesses generally give oral evidence and will be cross-examined, expert evidence will generally be challenged, the credibility and reliability of the witnesses are assessed and the Court will make findings of fact on the balance of probabilities, 

Final Orders will then be made after a complete evaluation of all admissible evidence.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.