Interim v Final Orders
All parties to family law proceedings, whether they are commenced in the Federal Circuit Court or Family Court, must file an Application setting out with particularity the orders they are asking the Court to make.
There are two types of orders the court can make:
- Interim Orders; and
- Final Orders.
The Court can make either of these types of orders after determination or by agreement between the parties (consent orders).
Interim Orders are temporary orders made by the Court until Final Orders can be made. The nature of the family law system in Melbourne means that most parties will wait approximately 12 months 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 parental responsibility, including whether one parent has sole parental responsibility for making decisions relating to the care, welfare and development of the children or whether parental responsibility 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 conclude the proceedings and they are exactly that, 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, say, five years old, meaning the children are five years older, 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 their date, unless there has been a significant change in circumstances. We refer to this as the Rice v Asplund test.
The types of final orders the Court can make include, the allocation of parental responsibility, with whom the children shall live and how often they will spend time with the other party and how the parties are to communicate with the children.
WHERE TO NEXT?
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