Preparing and Conducting an Interim Parenting Hearing

Section 1 – Introduction
This paper explores the process of preparing and conducting an interim parenting hearing, highlighting key principles and practical considerations. It aims to provide a guide for legal practitioners who wish to appear as counsel at an interim parenting hearing.

Section 2 – Appreciating the nature and object of Interim Parenting Hearings
Interim parenting orders are a critical aspect of parenting proceedings as they address urgent or temporary arrangements for the care and welfare of children pending final hearing when parents are in dispute about those arrangements.

The object of the hearing is to provide safety, temporary structure, and stability for the children.

Section 3 – Legal framework and principles
Part VII of the Family Law Act 1975 (Cth) (“the Act”) applies to the determination of interim parenting orders. Particularly, the provisions of s 60CA, s 60CC (1) and (2), (2A) and (3) of the Act are to be applied.

Usually, the hearing proceeds without cross-examination of the parties’ affidavit evidence and the Court is to make interim orders based on the untested evidence relied upon by the parties, making orders that also promote safety having regard to any allegations of family violence and abuse.1

The Court is required follow the decision-making pathway described in Goode & Goode [2006] FamCA 1346 and MRR & GR [2010] HCA 4 as these authorities remain “good law” despite the simplified statutory provisions applicable since amendments to the Act, which commenced 6 May 2024.2 The ultimate issue remains what orders are in or promote the best interests of a child or children with a focus on the child’s safety and well-being.

Due to the nature of the hearing, the Court relies on what is not in dispute or unchallenged evidence, and its impressions formed by the nature and detail of the evidence relied upon by each party.3

Where there are competing allegations of risk of harm that are not possible to be determined at the interim stage, a cautious approach is required by the Court.4

Section 4 – Preparation for an Interim Parenting Hearing
A legal practitioner representing a party in an interim parenting dispute should generally ensure they attend to the following preparatory tasks which involve the development of a case concept or plan. Having a case concept should ensure a well-structured and persuasive conduct of your client’s case in court.

• Review
– Thoroughly review all the facts of the case, including affidavits, and relevant documents. Particularly important are any s 67ZBD or s 67ZBE reports, subpoena material, and Court Child Expert reports.

• Identify Key Issues
– Determine what legal and factual issues need to be addressed as relevant to the parenting orders that may be made. This will help you focus your arguments and ensure that you cover all necessary matters about which the Court will want to know.

• Understand the issues that are relevant to the child’s best interests:
– What s 60CC considerations apply in the case?
– Formulate how you will present evidence supporting the relevant considerations and how that informs the child’s best interests in your client’s case.

• Gather necessary documents and evidence.
– Ensure affidavits are prepared well and address the issues succinctly and clearly. Advice about preparation of affidavits and the difference between good and bad ones are addressed in Section 8 of this paper.
– Identify what relevant documentation should be put before the court (eg Child Impact Reports, police or CSS reports, school records, medical records, communication logs, social media).

• Develop the case plan.
– Prepare a clear and compelling narrative that ties together the facts, legal issues, and your arguments. This narrative should be logical and easy to follow.
– Formulate a coherent structure for your arguments. Start with the strongest points and ensure that each argument is supported by evidence and legal authority.
– Anticipate your opponent’s contentions and plan how you will address them. This may involve using elements of their case to strengthen your submissions or using independent evidence to rebut or discredit their evidence or submissions.
– Bear in mind that the case plan may need to vary as additional evidence comes to hand or the other party presents additional information to you.
– Use the case plan for preparation of your Case Outline, which you are required to file prior to the hearing.
– Reality check
– Seriously consider whether there should be a contested interim hearing or whether the best interests of the child/children require negotiation of interim consent orders.
– Avoiding costly and unnecessary interim hearings, if possible, is desirable.
– Ensure that the clients do not have unrealistic expectations or misunderstandings relating to interim parenting orders or what the interim processes can achieve.

Section 5 – Conducting the Interim Parenting Hearing
Use your case plan and follow it unless you discover it is flawed!

• Courtroom etiquette and procedures.
– It is unnecessary to robe for an interim hearing.
– Refer to your opposing lawyer as “my learned friend” or “Mr/Ms [surname]”.
– Always stand when addressing the Court and if you are to make an objection.

• Presenting your case as the applicant
– Make a brief opening statement. Refer to the Case Outline filed, summarise the orders you invite the Court to make, and identify where the dispute between the parties lies.
– Ask the Court to read into evidence the affidavit(s) you have filed and upon which you rely.
– Ask the Court to receive into evidence any documents upon which you rely. They need to be formally tendered, not just referred to verbally or in the Case Outline. Ensure you have copies to tender if the documents are not filed on the electronic court file.
– Once you have adduced the evidence upon which you rely, tell the Court that is your case, subject to making your closing submissions.
– If you intend to make oral closing submissions, foreshadow that. Otherwise, tell the Court that your submissions are those set out in the Case Outline.

• Responding to the applicant’s case
– Make a brief opening statement. Refer to the Case Outline filed, summarise the orders you invite the Court to make, and identify whether you agree or disagree about the scope of the parties’ dispute.
– Ask the Court to read into evidence the affidavit(s) you have filed and upon which you rely.
– Ask the Court to receive into evidence any documents upon which you rely. They need to be formally tendered, not just referred to verbally or in the Case Outline. Ensure you have copies to tender if the documents are not filed on the electronic court file.
– Once you have adduced the evidence upon which you rely, tell the Court that is your case, subject to making closing submissions.
– If you intend to make oral closing submissions, foreshadow that. Otherwise, if you confine yourself to the Case Outline, tell the Court that your submissions are those set out in the Case Outline.

• Oral closing submissions
– It is preferable to make oral submissions because good advocacy may be persuasive.
– Address the competing proposals for interim orders and argue why the orders you seek are more compatible with the child/children’s best interests. Here you should ensure you address the key considerations of safety, welfare and stability.
– Use oral submissions as an opportunity to demonstrate why the other party’s evidence should not be accepted and why the uncontentious facts support making the orders your client seeks.
– If referring to authorities, give the citation in full and explain its relevance and application to what the Court is to decide. Assist the Court by providing pin-point references and handing a copy up.
– Ensure authorities are correct and accurate. See Dayal [2024] FedCFamC2F 1166; Valu v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 95

Section 6 – Other Case Law that may assist with interim hearings
Cowling v Cowling [1998] FamCA 19
The child’s best interests are the central focus of interim parenting orders, with an emphasis on addressing immediate needs rather than the long-term ones.

Morgan & Miles (2007) 38 Fam LR 275
The Court recognized that high levels of conflict between parents could be detrimental to the child’s well-being and made orders to reduce the child’s exposure to such conflict.

Mazorski v Albright (2007) 37 Fam LR 518
Addressed parental relocation in interim parenting orders, highlighting that careful evaluation is needed to ensure relocation aligns with the child’s best interests, particularly in terms of maintaining relationships with both parents.

Salah & Salah [2016] FamCAFC 100 at [37] to [46]
Gave consideration to allegations of family violence in interim parenting hearings. The Court emphasised the need to take such allegations into account even where competing evidence cannot be resolved. It is necessary to make interim orders that protect the child’s safety and well-being.

Deiter & Deiter [2011] FamCAFC 82
Interim parenting orders should be made promptly to minimize disruption to the child’s life. Delays can negatively impact the child’s well-being. The potential impact of interim arrangements on the child’s well-being must be carefully evaluated. This includes considering the child’s emotional, psychological, and physical needs. Stability and continuity are crucial for the child’s development. The Court considered the weight to be given to disputed allegations of family violence at interim hearings.

Section 7 – Post-Hearing Considerations
• Ensure your client understands the orders and the Court’s reasons.
• Emphasise the importance of complying with the orders and what the consequences are likely to be if the orders are contravened.
• Analyse the Court reasoning to identify any evidentiary gaps, weaknesses and strengths of your client’s case to prepare your case moving forward to final hearing.

Section 8 – International Considerations
It is important to remember s. 69E of the Act which provides for the court’s jurisdiction with respect to children who can be subject to parenting orders. Some parenting cases may involve international elements, such as cross-border custody disputes and the Hague Convention on the Civil Aspects of International Child Abduction may be relevant, meaning that Part XIIIAA, Division 2 and 4 of the Act may apply. These provisions and their operation are not within the scope of this paper, which focusses on interim parenting matters where the parties and child/children are all within Australia.

Section 9 – Affidavit preparation
A good affidavit and a poor affidavit can significantly impact the outcome of an interim hearing. It is useful to contrast the key differences between the two.

A good affidavit:

• Is clear and precise. It avoids ambiguous language and provides specific details that are easy to understand.
• It is well-organized, with a logical flow of information. Each paragraph is numbered, and the content is divided into sections with headings if necessary. You need to consider whether a chronological or issues-based order suits your case plan.
• The information included is relevant to the case. It focuses on the facts and avoids unnecessary details, mere assertions, embellishment, speculation or personal opinions.
• All statements are accurate and truthful. The affidavit is based on firsthand knowledge or clearly identified sources.
• It uses language consistent with the identity of the deponent.
• Adheres to requirements of the Rules.5
• If referring to supporting evidence, such as documents, photographs, or messages, to substantiate or corroborate use Annexures and prepare and collate as required by the Rules.6
• Complies with all legal requirements, including proper formatting, signatures, and witnessing.7

A poor affidavit:

• Is often ambiguous and vague, making it difficult to understand the facts and the relevance to the case.
• Lacks a clear structure and organization, making it hard to follow. Information may be presented in a haphazard manner without logical flow.
• Includes irrelevant information, mere assertion, exaggeration, personal opinions, speculation or hearsay, which can detract from more relevant and probative evidence and weaken the deponent’s credibility.
• May contain inaccuracies or false statements, which can undermine the affidavit’s reliability and the deponent’s credibility.
• Uses informal language or is expressed inconsistently with the identity of the deponent, which can make it appear less credible and less serious.
• Fails to include supporting evidence, making it difficult to verify the claims made.
• May not comply with legal requirements, such as proper formatting, signatures, or witnessing, which may render it inadmissible.

Section 10 – Tender of documents
If you rely on documentary evidence not included as annexures to affidavits, ensure the documents have been served or disclosed to other parties. Otherwise, the Court may refuse to admit it into evidence on procedural fairness grounds.

To assist the court, ensure a paginated tender bundle with index cover page is filed or available to be handed to the court.

Section 11 – Other tips
It is uncommon for evidentiary objections to be taken at an interim hearing, probably because the procedure is summary and some Rules of evidence do not apply unless the Court orders that they do, which is uncommon.8

However, the Court may decide to apply one or more of rules referred to in s 102NL(1) of the Act in certain cases. For example, if the evidence has no probative value.

Careful consideration should be given to the content of the opposing party’s affidavit and a calculated judgment made about whether objections should be taken on evidentiary grounds.

It is not uncommon at interim stage for a parent to argue that the children should not spend time with the other parent or that time should be supervised. In these cases, the Court must engage in a risk assessment, and it is important that counsel focus on the reasons why they say the risk is or is not unacceptable. If unacceptable risk is an issue at interim hearing, the Court will still apply authorities such as Isles & Nelissen [2022] FedCFamC1A 97 if it is possible to make findings of fact on the evidence. Otherwise, the approach in Salah & Salah is relevant.

The Court will also:

• Consider whether the risk in any given case can be ameliorated satisfactorily; and
• Weigh the probability or possibility of risk of harm to the child/children against other advantages to the child/children spending time with a parent, such as ensuring a meaningful relationship continues; and
• Make orders to mitigate risk that may arise in the care of the other parent.9

 

1 Sections 60CC(2)(a) and 60CC(2A)(a) of the Act.
2 Family Law Amendment Act 2023 (Cth).
3 Marvel & Marvel [2010] FamCAFC 101.
4 Marvel & Marvel [2010] FamCAFC 101 at [120]; Lavigne & Gavin [2021] FamCA 612 at [147].
5 Rule 8.15 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021(Cth).
6 Rules 8.15(3) and 8.15(4) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021(Cth).
7 Rules 8.15(1) and 8.16 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021(Cth).
8 Section 102NL of the Act.
9 Blinko & Blinko [2015] FamCAFC 146 at [27] and [83] as cited in Matthew & Hickson [2022] FedCFamC2F 201 at [50] and Galvin
& Pacotto [2024] FedCFamC1F 582 at [60] and Bower & Marshall [2022] FedCFamC2F 349 at [74].

Paper prepared for the Law Society of Tasmania CPD session on 30 July 2025 –  Judge Taglieri: Interim Hearings in the FCFCOA

Judge Taglieri
Federal Circuit and Family Court of Australia (Division 2)

29 July 2026