A R Walmsley Solicitors Sydney

DOCUMENTS & GUIDES...

INTERIM APPLICATIONS IN FAMILY LAW

There are times when it is necessary to make an application to the Court prior to a matter being finally heard. This is called an Interim Application. Interim Applications can relate to the parenting of children. There is usually some urgency with an Interim Application: refusing to allow a child to spend time with a parent; a significant problem interfering with the ability to parent, or a specific issue which needs to be determined immediately in the interests of the child. An Interim Application to the Court can be a very dangerous vehicle. It needs to be controlled by an experienced Family Lawyer. An inexperienced Lawyer can give advice to a parent and adopt a course of action which can produce a very different result than what was anticipated by the parent. Let me give you an example.

Peter and Petrina had one child, Paul, aged six. Paul lived with Petrina. The relationship between Petrina and Peter was tense. Petrina refused to allow Peter to spend unsupervised time with Paul. Peter was very upset. He argued with Petrina and said words he regretted saying. Petrina obtained advice from a Lawyer who was a family friend. He rarely went to the Family Court. As a result of the advice she received, Petrina made an application to the Family Court for an Interim Order that the child Paul live with her and spend limited supervised time with Peter. There were no circumstances to justify supervision of the time the child spent with his father.

When the matter came before the Court the Judge made a decision that even though this was an Interim Application, it was appropriate to make a finding that each parent have equal shared parental responsibility for the child. The Judge having made that determination was then bound to consider whether or not the child should spend equal time with each parent. In considering that issue the Court looked at:

  • How far apart the parents lived from one another;
  • the parents' ability to communicate with one another;
  • the impact on the child, and anything else the Court thought was appropriate.

In weighing all of these matters up, the Judge in this case thought that it was practical for the child to spend equal time with each parent and it was in the interests of the child for that Order to be made until the matter came before the Court for a final hearing. As you could imagine, Petrina was shell shocked. This was a result she had not expected nor had she been prepared for.

An experienced Family Lawyer would have handled this matter in a totally different way. Lawyers practising in the arena of Family Law need to be up to date with the approach the Court will adopt in relation to children's issues. Advice that may support your point of view may not necessarily be the right advice.

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