What you need to know about Final Orders in The Family Court
What are Court orders?
An order of the Court is best described as the binding decision or judgment of a judicial officer. The Federal Circuit and Family Court of Australia (“the Court”) has the power under Section 34(1) of the Family Law Act 1975 (Cth) (“the Act”) to make orders in relation to matters in which it has jurisdiction and “of such kinds … as the Court considers appropriate”. The Court can make financial orders in relation to marriages and de facto relationships and can also make parenting orders relating to the parenting arrangements of a child or children.
Court orders are binding because there are mechanisms in place to enforce any breaches. Orders can be made in two ways:-
- By a judicial officer after a hearing (interim and final orders); or
- By consent/agreement between the parties.
Who can apply for orders in the Court?
Regarding parenting proceedings, any person concerned with the welfare, care and development of a child may apply for parenting orders. This can include grandparents or other relatives. Parenting orders can be applied for at any time, including before and after separation, and after divorce.
Regarding property proceedings, any person who is or has been married may apply for financial orders. If the parties are divorced, then financial proceedings need to be filed no longer than twelve (12) months after the date their divorce took effect. If a party applies after twelve (12) months has lapsed, then they require permission from the Court. Parties to a de facto relationship may also apply for financial orders, and the parties have twenty-four (24) months to file before requiring permission of the Court.
What is the difference between final orders, interim orders and consent orders?
In family law proceedings the Applicant (the person who initiates the proceedings) is required to list the orders they are seeking to be made in their application to the Court. As noted earlier, this can relate to parenting, property, or both. There are three (3) main types of orders made in family law proceedings, being:-
- Consent Orders;
- Interlocutory or interim orders; and
- Final orders.
Consent orders are orders that you and the other party to the proceedings agree on. Consent orders can be agreed, drafted and made by the parties’ lawyers, without the parties having to go to Court. Consent orders are often made in circumstances where the parties can agree on their parenting arrangement or financial settlement, and they want to formalise their agreement into orders. This is often a preferable option in circumstances where parties want the certainty that orders can afford without the stress and cost of litigation.
Ultimately, Consent orders have the same legal effect as the other forms of orders. In other words, they have the same legal effect as if a judicial officer had made the orders after a court hearing. One caveat to note is that not all Consent orders will be accepted by the Court. Consent orders must consider the best interests of the child in relation to parenting orders, and must have terms that are just and equitable in relation to property orders. Filing Consent orders also attracts a court filing fee.
Interlocutory and final orders are both made by a judicial officer after a court hearing. Final orders are made at the end of a matter, and bring the matter to a close. Interlocutory or interim orders are made regarding more urgent matters or when some issues need to be decided more quickly. These kinds of orders last until other orders or final orders are made.
What do parenting orders cover and can final parenting orders be changed?
Parenting orders can deal with a variety of issues concerning the care, welfare and development of a child or children. This can include, but is not limited to, the following:-
- Parental Responsibility;
- Communication between the parties;
- Live with and spend time with arrangements;
- Non-denigration;
- Travel;
- Education; and/or
- Relocation.
Final parenting orders can only be changed where the parties’ agree and file Consent Orders (or make a new parenting plan), or where is no agreement and one party wishes to unilaterally change the orders, where there has been a significant change of circumstances and the change in orders is necessary to protect the best interests of the child or children. This can include where the living situation of the parties has changed, where one party is seeking to relocate, where substantial time has lapsed, where there has been abuse and/or a party or the child are of ill-health. Change alone will not warrant a change in the orders. The key consideration is that the change needs to be substantial or significant enough to warrant a change in the orders.
What to do if someone breaches an order?
Ultimately, court orders must be complied with. In circumstances where a party breaches an order or orders, it is necessary to first try and resolve the breach between the parties through communication or alternative dispute resolution, before either of the following applications can be filed:-
- Enforcement application; or
- Contravention application.
An enforcement application is filed when a party is seeking to enforce existing court orders and they want the resumption of arrangements set out in that existing order. A contravention application is filed when a party wishes to impose a punishment or consequence on the person who breached the order. It should also be noted that contravention applications can be filed in relation to both parenting and property orders.
In financial proceedings, when an enforcement application is successful the Court can make any of the following orders:-
- Appointment of a receiver;
- Sequestration of property;
- Attachment of earnings and debts; and/or
- Seizure and sale of property.
In parenting proceedings, if a contravention application is successful, the Court may make an order that:-
- Varies the primary order;
- Compensate for time lost with the child;
- Requires the party to attend a post separation parenting program;
- Requires the party to enter a bond, pay the legal costs of the other party, pay compensation for reasonable expenses lost due to the contravention and/or pay a fine; and/or
- Sentences the party to imprisonment (in extreme cases).
Seeking legal advice
Ultimately, court orders must be followed by the parties to which the orders relate to. There can be very severe consequences that arise out of breach of orders. However, Court orders (whether by consent or made by a judicial officer) are important in family law proceedings because they provide a degree of finality and closure. This in turn allows parties to move on with their lives, whether they experienced a relatively amicable separation or whether they experienced a highly acrimonious one.
Doolan Wagner Family Lawyers offer specialist family law advice and are based in St Leonards on Sydney’s North Shore. If you have recently separated or have a Family Law enquiry, please contact us on (02) 9437 0010 or send us an email at enquiries@familylawyersdw.com.au to discuss your matter in complete confidence. We have a dedicated team of experienced family lawyers to handle your matter effectively and efficiently, providing you with reliable, direct and practical advice.
About the Authors:
Lisa Wagner is Managing Director and Principal of Doolan Wagner Family Lawyers. Lisa is an Accredited Family Law specialist holding honours degrees in economics and law. She is also a Collaboratively trained Family Lawyer, a Family Dispute Resolution Practitioner, and a Parenting Coordinator. Lisa has over 30 years’ experience as a specialist family lawyer, experienced litigator and skilful negotiator in all family law matters; working for the majority of that time in Sydney’s CBD as well as on Sydney’s lower North Shore and Northern Beaches.
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Emilia Turnbull is a family lawyer at Doolan Wagner Family Lawyers. Emilia holds a Bachelor of Laws and a Bachelor of Security Studies from Macquarie University and a Master of Laws specialising in International Human Rights Law from the University of NSW.
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Disclaimer:
These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.
