Final Orders Vs Interim Orders

First published May 30th, 2022

The divorce court process is difficult, especially when children are involved. The first step in legal proceedings requires each party to create a parenting arrangement plan with their lawyer so you and your former partner can work towards submitting final orders to the Australian Family Law Court or the Federal Circuit Court. It’s also an opportunity for those with family law proceedings to ask how interim orders can be made, clearly stating what each parent wants until final orders are decided.

The Family Court has the power to order final outcomes about property or parenting matters or both. A final outcome in relation to a property will result in final orders dictating how a separating couple divides assets and liabilities. A final outcome in relation to parenting will result in final orders for how parents will share responsibility and physical care for children.

This article helps you understand the difference between interim and final orders and how to seek legal advice before commencing legal proceedings or dispute resolution.

What Is The Difference Between Final Orders and Interim Orders?

Interim orders are temporary orders while the Court makes its decision before the final orders become legally binding.

The court has the power to grant an interim intervention order if they believe someone is not safe and needs protection immediately. This usually lasts until a judge decides whether or not there should be final consequences for a parent’s actions, so both parties involved should have legal representation during this time frame to make sure decisions are made in the best interests of the child(ren).

These delays make it essential that parties seek legal assistance when applying for interim and final orders so that the appropriate care and diligence can be taken in preparing and presenting your case before a final hearing.

What is The Court’s View on Interim Orders?

The Family Court system refers to a guiding principle called “the best interests of the child.” This sets up guidelines for how much time children spend with each parent while minimising any chance they will be harmed or neglected. The terms “best interests of the child” are not widely defined, but it generally refers to how courts decide in interim hearings what services and actions will be in the children’s long-term favour.

Interim orders are often necessary when an urgent issue needs action while the court process continues. You may want to take interim actions for dealing with property division, custody plans or visitation issues until the court process has been resolved.

What Kind of Interim Orders Apply Alongside Final Orders?

The courts can grant interim orders if you have concerns about the child’s welfare or safety a parent may have. The courts will decide on each interim order based on the child’s circumstances and are not limited to;

• Prevent one parent from removing a child from the country, state or local area. An interim order may be granted for law enforcement officers to recover and return the child to the previous home.
• Enforce child protection agencies to ensure the child is not in danger of domestic violence or any other risk of imminent danger.
• Ensure the non-custodial parent has sufficient communication with the child.
• To ensure a child is spending sufficient time with other family members such as grandparents, new partners or other significant family members
• The number of hours the child spends each week with his/her other parent and who they are to live with permanently
• What parent has responsibility for making decisions about the child’s health, education and welfare

Applying For Interim Orders When Final Orders Are In Place!

Applying for interim orders when a parenting final order is in place will impact your children’s future. They can include specific financial issues or both, so it’s important to know what type of order you need before starting the process.

When you are filing parenting orders, there are three types of orders:

• Final orders – final orders bring matters to a close
• Interlocutory orders – Interlocutory orders are made in urgent cases and last until other orders or the final decision on your case. You cannot file an application for interlocutory orders unless you’ve filed a formal parenting order relating to your parenting issues.
• Consent orders – If you and the other party agree to a consent order, it will be made without going through court. Consent orders have exactly the same legal effect as if they were issued by a judicial officer after hearing both sides of the parenting agreement.

The court will consider the facts of each case in an interim hearing and may not grant the above orders from either parent’s request. Make sure you get legal advice before filing for interim orders when final orders are in place, as each order attracts a filing fee and can take considerable time to process.

How To Apply For Interim Orders?

The first step in any legal interim order proceeding is filing an initiating application. You can find information about applying for interim and urgent parenting orders on the Federal Circut and Family Court of Australia website. You can apply for financial and parenting orders on the same application form. You should always seek legal advice before deciding what to do when applying for court orders.

One parent or their family lawyer must complete an initiating application form and submit it with their response, which will be responded to by either the other parent or a law firm on behalf of the other parent.

The application for parenting orders can be made by anyone interested in children’s care, welfare and development. Interim parenting orders provide stability during this difficult period while proceedings go on to determine whether they will eventually become permanent when the final parenting order is decided.

How To Apply For Final Order?

If all parties agree, they can apply for consent orders to finalise the parenting order. The consent orders are the final hearing documents that make the terms of the parent’s decisions official and legally binding.

The Courts are always prepared to consider interim parenting orders if the circumstances have changed. If you feel that a final order made by the court is no longer appropriate or effective for your or the child(ren’s) situation, you can apply for a variation to an agreement.

For the courts to accept the variation to the final parenting agreement, there must be a significant change to the original agreement and the circumstances of the child’s living arrangements.

For example:

• A parent’s illness means the parent cannot properly look after the child.
• The child has been relocated without the other parent’s consent.
• Situations where child abuse is taking place.
• Both parents agree to vary the parenting plan.
• If one party omitted to disclose important information before the final orders were made.

Conclusion

If you are a parent considering applying for interim parenting orders or an application to vary your final parenting orders, it is important that you carefully consider the prospects of success before commencing family law proceedings. The court is reluctant to vary orders and expose children to ongoing instability due to uncertainty and litigation. Applications to vary final orders are complex, and it’s important to ensure that any application has a good chance of success during the family court process.

The above information in this article is not intended as legal advice. You should obtain legal advice for your own specific circumstances.

Contact Sage Family Lawyers if you would like more information about making an application to vary parenting orders or need legal advice on other family law matters. We can help you understand your options and guide you through the family law system, ensuring that your application has the best possible chance of success.

Frequently Asked Questions