Urgent Interim Parenting Applications - How Does a Court Decide Urgent Parenting Applications?

09/10/2018

Parenting Applications are commenced in the Family Court of Australia or the Federal Circuit Court of Australia by the filing of an Initiating Application. In normal circumstances the parties will have attempted dispute resolution before an Application is filed in the Court and if Mediation has failed, the parties will have obtained a s60I Dispute Resolution Certificate.

In some circumstances however, when matters are urgent, proceedings are commenced without the filing of a Dispute Resolution Certificate.  Sometimes matters are commenced with a Dispute Resolution Certificate but become urgent. The Court will need to hear and decide the case urgently.  The Court will list the case for an Interim Hearing.

Interim Hearings – Limited Time and Resources

The Court has only limited time and resources to resolve matters at Interim Hearing. This type of ‘Hearing’ is conducted on the basis of the Affidavits filed and written material and there is no cross-examination.  The Court therefore does not have the opportunity that it would have in a fully prepared and contested Final Hearing to determine matters of fact and will not have available to it, helpful evidence such a medical family reports.

The Judge will determine the case by taking into account the paramount consideration which is “what is in the best interests of the children”.

How Does the Court Conduct an Interim Hearing

In the case of Goode and Goode the Full Court provided and set out the principles that will be applied by a Judge in terms of conducting and deciding an Interim Hearing.  The Judge will be requested to:

(a)       Identify the competing proposals of the parties.

(b)       Identify the issues of dispute in the interim hearing.

(c)       Identify any agreed or unconsented relevant facts.

(d)       Consider the matters set out in section 60CC of the Act.

(e)       Decide whether the presumption for equal shared parental responsibility is in the best interests of the child or that it does not apply because there are reasonable grounds for leave if there has been abuse/family violence which will rebut the presumption. 

(f)        Determine whether equal time is in the best interest of the child/ren.

Preparation for Interim Hearing

In a recent case, Watson & Watson acted on behalf of the mother in circumstances where the father had sole parental responsibilities of the children pursuant to Orders made many years before in circumstances, where the father had decided that the children would spend no time with the mother.  The mother was not spending any time with the children – The situation was urgent.

Watson & Watson prepared the case by:

• Drafting an Application setting out the Parenting Orders sought by the mother on an interim basis and on a final basis. 
• Preparing an Affidavit setting out the mother’s evidence in relation to her Application and in support of her Application. 
• Preparing a Case Outline Document setting out the information and Submissions so as to properly present the case in accordance with the requirements of Goode and Goode.           

Watson & Watson obtained the following Orders benefiting the mother:

• Time with the children commencing immediately
• Time with the children overnight
• Time with the children during school holiday. 
• Time with children on special occasions. 

If you have been deprived of contact with your child/ren please contact Richard Watson Senior Family Law Solicitor or his Personal Assistant Shereen Da Gloria to discuss your matter and seek the appropriate advice to right this wrong.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 02 9221 6011.