Donate Child Support Calculator
Skip navigation

Interim Hearings

Just after some clarity, we are coming up on yet another interim hearing in our long court process. I see from experience that it is a rarity for arrangements to change at an interim hearing unless by consent but I am being pushed by the others side for things to be changed and that if I do not agree it will be up to the magistrate. Even the national enquiry centre was very vague on wheather or not a magistrate would change the arrangement at a interim hearing as they said it was classed as legal advice.
We are going through the FMC if that helps, I would love to know if the magistrates would change orders at an interim hearing.
TIA
This site does not give legal advice either.
 Magistrates have the power to change orders at any time - that goes for interim hearings too.

Thanks Monaro, that's basically the gist of what I wanted to know.
I'm learning enough on the legal system in my studies, it can look so simple on paper and in studies but when I am in my own case it overwhelms me, the emotion I guess.
Because I got this letter friday night I had been stewing on wheather it could happen or not and that sort of decides if I respond to ex's affidavit now with just over a week to go or if I hold off till we get closer to final hearing and have a clearer head.

I much appreciate your response.
The reason it is a rarity for things to be changed at an interim hearing is often because of the things that are asked to be changed. Some times these things need to be looked at in detail before a decision can be made and the Magistrate will not entertain this due to time constraints and this is not what interims are for. Interims are generally done on paper.

As stated the Magistrate has the power to make changes as they see fit but are unlikely to look at something in much detail at an interim if there is not an immediate need. That being said if a case can be argued that the Magistrate should listen to an arguement then they may and they may also make these changes. As always it depends on the case.

"When there is no enemy within, the enemies outside can not hurt you"
One of the things with interim hearings is that the Federal Court Magistrate or Family Court Judge, does not have the benefit of the evidence of the parties being tested in any great detail, But as Monaro quite rightly points out, Magistrates do have the power to make changes to the orders at any stage and will do so dependent upon what is presented
It is to be noted that Judicial Registrars also are empowered to change orders in the Family Court.
Applications in a Case and Contravention hearings are an event wherein orders can be sought, or, need to be defended.
Federal Court Magistrates are somewhat more autonomous and able to change orders.
The Rules of Evidence in Interlocutory hearings are distinct from other hearings. These hearings are generally limited in time (2 hours). With the evidence not being tested to the same extent as in a trial it is appropriate to prepare rebuttals for any anticipated spurious allegations that might be uttered by an adversary.

Registrars appear able to change consent orders when both parties affirm their willingness to agree to same.


The Family Law Rules read:
Part 5.2 Hearing  interim and procedural applications
5.08 Interim orders  matters to be considered
When considering whether to make an interim order, the court may take into account:
(a) in a parenting case  the best interests of the child (see section 60CC of the Act);
(b) whether there are reasonable grounds for making the order;
 whether, for reasons of hardship, family violence, prejudice to the parties or the children, the order is necessary;
(d) the main purpose of these Rules (see rule 1.04); and
(e) whether the parties would benefit from participating in one of the dispute resolution methods.
5.09 Affidavits
(1) The following affidavits may be relied on as evidence in chief at the hearing of an interim or procedural application:
(a) subject to rule 9.07, one affidavit by each party;
(b) one affidavit by each witness, provided the evidence is relevant and cannot be given by a party.
(2) If an application is for a parenting order, the affidavit mentioned in paragraph (1) (a) must be in the form approved by the Principal Registrar.
Note 1 Subrule 15.06 (1) provides that an affidavit may be relied on at a hearing or trial only if it was filed and served in accordance with these Rules or an order.
Note 2 Rule 15.21 provides that a party must not, without the courts permission, request the issue of more than 3 subpoenas for the hearing of an Application in a Case (Form 2). However, a child representative may request the issue of more than 3 subpoenas (see subrule 15.21 (2)).
5.10 Hearing time of interim or procedural application
(1) The hearing of an interim or procedural application must be no longer than 2 hours.
(2) Cross-examination will be allowed at a hearing only in exceptional circumstances.
5.11 Partys failure to attend
(1)
If a party does not attend when a hearing starts, the other party may seek the orders sought in that partys application, including (if necessary) adducing evidence to establish an entitlement to the orders sought against the party not attending.
(2) If no party attends the hearing, the court may dismiss the Application in a Case (Form 2) and the Response to an Application in a Case (Form 2A), if any.
Note A reference to application includes a reference to cross-application (see the dictionary).



Part 5.2 Hearing interim and procedural applications


5.08 Interim orders matters to be considered


When considering whether to make an interim order, the court may take into account:


(a) in a parenting case the best interests of the child (see section 60CC of the Act);


(b) whether there are reasonable grounds for making the order;


 whether, for reasons of hardship, family violence, prejudice to the parties or the children, the order is necessary;


(d) the main purpose of these Rules (see rule 1.04); and


(e) whether the parties would benefit from participating in one of the dispute resolution methods.

What is done for you, let it be done, what you must do, be sure you do it, as the wise person does today that what the fool will do in three days - Buddha
1 guest and 0 members have just viewed this.

Recent Tweets