Family Law proceedings place significant strain on all parties involved. The nature of Family Law litigation calls for parties to rearrange aspects of their lives on both a short term and long term basis.
Generally speaking, Orders are made twice; first during the proceedings and then at the of the proceedings. These are two different types of orders: Interim orders and final orders.
Interim Orders will have effect until final orders are made.
As a result of the extensive delays in the Family Court of Australia and the Federal Circuit Court of Australia in determining applications under the Family Law Act 1975 (Cth) on a final basis, parties will often seek interim orders to put in place various arrangements until final orders are made. These can include for example:
- Interim parenting arrangements
- Interim property settlement
- Interim spouse maintenance
- Orders for exclusive occupation of the former matrimonial home
Interim orders are also made when there is urgency in a matter that the court needs to address prior to a final hearing. These can include for example:
- International child abduction where the issue whether a child is wrongly retained in or removed from the Commonwealth of Australia
- If a party to marriage or de facto relationship is attempting to sell real estate or deal with property
- If a party ceases repaying the parties loans and the lender intends to take steps to recover what has been loaned
Interim Hearings are heard in two hours or less unless there are special circumstances that require the Court to sit for longer than two hours.
Depending on the urgency of the matter, Interim Hearings will usually take place about two to three months after an Initiating Application is filed.
Interim Hearings are heard on the papers, which means the Court does not permit cross examination of witnesses nor does the Court determine disputes of fact. Issues of fact are determined at a Final Hearing after cross examination has occurred.
You cannot file an application for an interim order unless you have filed an application for final orders as well. To do this, you must file an Application in a Case and have an Affidavit in support of the interim orders. If it is urgent, this should be made clear in the affidavit.
Final Orders bring a matter to a close. This is the Court coming to a resolution on a final basis in regards to the dispute between the parties.
In order to apply for a final order, you must:
- Pay the filing fee
- File an Initiating Application,
- File a Financial Statement if it is a financial matter
- File a 60i certificate from a Family Dispute Resolution practitioner if it is a parenting case
- File your affidavit evidence, affidavit evidence from your witness, including experts
The court will then consider the facts of each case, and may or may not grant the orders as requested.
Parenting Orders will address the care, welfare or development of a child.
- The orders can determine who the child resides with, the amount of time spent with each parent or guardian, the allocation of parental responsibility as well as any other aspect of care for the child.
- In reaching a decision about the order, it is important to note that the Court considers what is in the best interests of the child
In financial matters, the Court will consider whether it is just and equitable to adjust the party’s respective property interests.
- Any person who has been married or has been a part of a de facto relationship for two years can apply for Final Orders.
- For those who have been married, applying for property orders or spouse maintenance must be within 12 months of getting divorced.
- If you are in a de facto relationship, an application for property orders or spouse maintenance must be made within two years from the breakdown of the relationship.
- If application is made outside of the above time limits the court will need to consider whether to give leave to hear such an application and leave is not granted in every circumstance.
You can apply for both parenting and property orders in the same application as well as any order related to the party’s matter.
It is important that you obtain independent legal advice in relation to your situation as a lawyer can help you to understand your legal rights and responsibilities, as well as how the law applies to your case.
Chantel Athanasakis is a PA in the Sydney Office.