A trial, also commonly referred to as a hearing, is a contested proceeding that determines an outcome for the parties. In respect of Family Law matters, this will usually involve parties that have separated and require judicial determination for parenting and/or property matters. A final hearing leads to orders made on a final basis, where parties are not required to attend Court on any further occasions. An interim hearing is held when it is necessary to determine urgent or temporary matters. It results in interim orders, which remain in force until the final hearing.
When filing a family law Application in the Federal Circuit Court or the Family Court, a party must advise the Registry whether they are intending to seek Interim Orders as well as final orders. Any orders sought are set out on the Application.
When is an Interim Hearing required?
Interim Hearings most commonly occur in urgent circumstances.
In parenting matters, an Interim Hearing may be required if one party believes that the current arrangements place the subject children at an unacceptable risk of harm. An Interim Hearing may also be used where parties are unable to reach an agreement for parenting arrangements in the short term. In most cases, an Interim Hearing is not required when parties are able to reach an agreement. Such an agreement is formalised with Interim Consent Orders.
An Interim Hearing may also be used to obtain Orders to monitor behaviour and progress the matter, such as:
- Drug testing;
- Recovery Order;
- Restraints on certain behaviours;
- Family Report and/or Child Inclusive Conference; and/or
- Appointment of an Independent Children’s Lawyer.
In respect of property matters, an Interim Hearing will often be required in the following circumstances:
- Where a party is seeking Sole Occupancy of the former family home;
- Where a party requires interim and/or urgent spousal maintenance;
- Where a party seeks injunctions and/or restraints, to restrict a party from disposing of any assets/property;
- Where a party has failed to disclose a particular financial resource/asset; and/or
- Where a party is seeking a valuation.
Directions will be made by the Court, in order to guide the conduct of the parties and ensure that a particular task is undertaken.
What if my matter is listed for Interim Hearing?
If you are required to attend an Interim Hearing, it is highly recommended that you have the support, assistance and advice of a legal representative. When a matter is listed for Interim Hearing all parties, including Independent Children’s Lawyers, are required to attend and participate unless the court orders otherwise.
In the Federal Circuit Court of Australia and Family Court of Australia, the rule of evidence is not strictly applied. At an Interim Hearing, there will generally be no cross-examination of the parties (unless there are special circumstances and leave is obtained by the Court). Evidence will be admitted into the Court record by way of Affidavit. As such, any information and evidence that you intend to rely upon at the Interim Hearing, should be included in your Affidavit material.
You may also wish to obtain relevant records by issuing subpoenas to bodies such as the Police, Department of Human Services and Bank records. Once these have been supplied to the Court and leave has been obtained, you may then seek to tender these records into evidence, in support of your position.
You may also wish to rely on expert reports, such as psychiatric reports, Family Reports and valuations, provided that these have been obtained in accordance with the relevant rules and procedures. However, at an Interim Hearing, it is very unlikely that these reports will be examined.
Once material is finalised, filed and served, and the matter is ready to progress to an Interim Hearing, parties will be required to attend. In some circumstances (generally those where there is a risk of harm or urgency), the matter may proceed ex parte (without a party being present) or where a party has not had the chance to file material.
During the Interim Hearing, the parties or their Legal Representatives, will read into evidence the material they intend to rely on. The parties will then make submissions in relation to their respective application.
How long is an Interim hearing?
An Interim Hearing, depending on the complexity of the matter, may last anywhere from 10 minutes to several hours. The Judge may deliver a decision on the day, or in complex matters, some time after. The Judge will generally be required to provide the reasons for the decision.
The Orders will later be published on the ComCourts portal.
If a party believes that they have grounds to lodge an appeal, they have 28 days to lodge a Notice of Appeal and supporting documentation and material with the Registry. An appeal outside of this time limit requires leave from the Court.
If you require legal advice or representation in a family law matter or in any other legal matter, please contact Go To Court Lawyers.