This article was written by Sally Crosswell

Sally Crosswell has a Bachelor of Laws (Hons), a Bachelor of Communication and a Master of International and Community Development. She also completed a Graduate Diploma of Legal Practice at the College of Law. A former journalist, Sally has a keen interest in human rights law.

What Is An Interim Hearing?


An interim hearing is held when parties cannot agree on arrangements for their children or property and the court must made an order before a final decision is made. It enables urgent issues to be dealt with, and an interim order remains in place until there is a further court order or the parties reach an agreement.

An interim hearing can occur on the first court date allocated when documents are filed with the court, or at another step in the settlement process. The hearing will be allocated a maximum of two hours.

Orders commonly made at an interim hearing relate to a child’s living arrangements, occupation of the matrimonial home, spousal maintenance, or protection of property (via an injunction).

Conduct of a hearing

Case law has provided the steps for conducting and deciding an interim order in a parenting matter. The judge should:

  1. Identify the competing proposals;
  2. Identify the issues in dispute;
  3. Identify any agreed or uncontested facts;
  4. Consider matters set out in section 60CC of the Family Law Act 1975;
  5. Assess whether the presumption for shared equal parental responsibility is in the best interests of the child or whether there are grounds to rebut it;
  6. Assess whether equal time is in the best interest of the children.

Section 60CC lists factors that the court must consider in determining what is in a child’s best interests, with the primary considerations being the benefit to the child of having a meaningful relationship with both of the child’s parents, and the need to protect the child from physical or psychological harm.

Evidence

Usually at an interim hearing the court relies on evidence contained in court documents. These include:

  • affidavits of the applicant or respondent;
  • affidavits of any witnesses;
  • documents annexed (attached) to affidavits;
  • financial statements of the applicant or respondent.

The court does not usually seek oral evidence at an interim hearing, but may require additional information or clarification from a party, which can be provided by the party itself or its solicitor.

When the hearing begins, the judge will ask a party to identify documents it will rely on or ask what evidence the party will rely on. Sometimes one or both parties will have issued a subpoena before an interim hearing, and if a party wants to rely on information arising from the subpoena, the court will need to be advised of this.

Preliminary matters

There may be a preliminary matter that needs to be dealt with before the hearing begins. A preliminary matter can include notifying the judge that:

  • agreement has been reached on certain issues;
  • one or other parties seek to rely on evidence which has not yet been filed;
  • there is an error in a document which needs to be corrected.

Submissions

The hearing consists mainly of parties making submissions about their case and why the orders they seek should be granted. They should focus on why the orders sought are in the best interests of the children (parenting matters) or would lead to a fair and equitable outcome (property matters). Submissions are usually made orally but can be made in writing. They must not contain new evidence. Usually the applicant makes their submissions, then the respondent – who also addresses any issues raised by the applicant that require a response – then the applicant may be allowed to respond.

Judgment

If the judge is satisfied they have all the relevant information, they will state that they intend to make a judgment. They will usually provide reasons for the decision before announcing the orders, including a recap of evidence and its value. The judge can deliver their decision on the day or defer to another date. Orders become effective immediately unless stated otherwise.

If there is an error in the order in the form of an accidental slip, mistake or omission, a party can seek a correction under the “slip rule”. There must be agreement from all parties for a change to occur.

There are limited circumstances in which a party can appeal an interim order, and an appeal must be made within 28 days. Unless the interim order relates to parenting, a party must ask the court’s permission to appeal, called “seeking leave”.

Unless there has been a significant change in circumstances since an interim order was made, a party cannot seek a further interim hearing.

If an interim order is breached, a party can file a contravention application with the court. If an interim order was made more than 12 months ago, family dispute resolution maybe be required before a party can file an application.

What cannot be done at an interim hearing

At an interim hearing, the court does not have jurisdiction to:

  • make findings of fact when facts are in dispute. This can be done only at a final hearing;
  • make orders about certain issues, such as where a person must live;
  • make final orders unless there is a (rare) exception.

For advice or representation in any legal matter, please contact Armstrong Legal.

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