Court orders are the legally binding declarations made by judges which fulfil the purpose of resolving a dispute and outlining the obligations which each party must perform. Family Law proceedings are often quite lengthy, with most parties waiting at years for a final hearing, so interim orders ensure that the needs of all the parties are met in a timely manner. These delays make it essential that parties seek legal assistance when applying for interim orders so that the appropriate care and diligence can be taken in preparing and presenting their case.

What are Interim Orders?

Interim orders are temporary orders which are put into place until final orders are made by the Court, which brings the matter to an end. Judges determine interim applications based on the facts and circumstances of each case which is derived from the material filed by each party.

In Family Law matters, interim orders may relate to issues such as parenting or financial matters in separation. In relation to parenting orders, the court must consider the best interests of the child. An interim order may provide families with a sense of stability. In relation to financial orders, an interim order may provide the basis as to which of their properties they are permitted to use or sell while the matter is ongoing. Other common terms pertaining to interim orders in family law include:

  • Allocation of parental responsibility,
  • Living and communication arrangements for children,
  • Instructions to attend upon a family consultant to obtain a family report
  • Instructions for a party to undergo drug or alcohol testing, or
  • The appointment of an independent children’s lawyer (ICL), as necessary.

Interim orders differ from final orders which conclude the proceedings, as well as consent orders which arise out of an agreement between the parties. Final orders are not necessarily irrevocable, as both parties in family law proceedings may have the right to set aside those orders or apply for a change to the orders in the event of a substantial change in circumstances.

Applying for Interim Orders

Each Family Law proceeding commences with the filing of an initiating application. One party must file that initiating application and the other party files a response to that application. This will set out the interim and final orders you are asking the court to make. Generally you will be unable to file for interim orders until you have filed an application for final orders. These applications all need to make it clear to the court what orders you are seeking and the evidence to support them. Any person who is concerned with the care, welfare and development of children can apply for interim parenting orders.

For financial matters in a divorce, either party to the marriage can apply within 12 months of the divorce order taking effect and for financial matters when a de facto relationship breaks down, either party to the relationship may apply within 2 years of the breakdown of the relationship. There are various exceptions in filing out of time, and we strongly advise that you seek legal advice in the event you are faced with this issue.

Case Study: Relocation of Children

Many family law matters that appear in interim hearings involve the relocation of children by one parent before divorce or settlement proceedings are finalised. As reinforced in the recent case of Brant v Brant [2021] FamCA 91, interim orders can be made to undo a parent’s attempt to relocate children before a final hearing and enforce the best interests of the child and shared parental responsibility. In that case, the mother had relocated her two children and enrolled one child in a new school without consultation or consent from the father. The father then sought an interim order for the mother and children to return to the area, offering exclusive occupancy of the matrimonial home and payment of child support to facilitate this arrangement. The Court found that the relocation may have had an adverse impact on the meaningful relationship the children have with their father, and that the relocation should be temporarily reversed until final orders could be made. It is important to note however that where there is an interim hearing regarding children, the overriding consideration of the Family Court is determining what is in the best interests of the children.

Navigating a separation or divorce can be a highly stressful and emotional time for you and your family. At Etheringtons we provide a compassionate and skilled approach to family law matters. If you need further advice or assistance regarding interim orders or other family law matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.