Interim hearings – what’s the point?

Vilnius & Vilnius [2016] FamCA 16 (22 January 2016)

Last Updated: 8 February 2016

FAMILY COURT OF AUSTRALIA

The following is annotated. For full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2016/16.html

Interim parenting

45. In Marvel & Marvel (No. 2) [2010] FamCAFC 101 the Full Court (Faulks DCJ, Boland and Stevenson JJ), discussed the difficulties associated with making findings on contested evidence as follows:

120. As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

…

122. In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

Later, at paragraph 100 their Honours amplified their comments and said:

The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

46. In George & George [2013] FamCAFC 182 the Full Court cited Deiter & Deiter [2011] FamCAFC 82 in confirming that the mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it.
47. In Deiter (supra) the Court was there concerned with the situation where the contested facts related to an assessment of risk and where it was said at [61]:

… Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.