Family law knowledge sharing: when will the court make interim property orders?

What is an interim order? Put simply, an interim order is made ‘pending further order’. It is an order that applies ‘in the meantime’, the interim period until a final hearing or finalization of proceedings by agreement. Further orders can be made at any time during proceedings by consent (where parties agree about one or some issues in dispute), or are otherwise made by the Court.

You can ask the Court to make interim orders at the same time you ask it to make final orders, or at any time proceedings are on foot, with an Application in a Proceeding. Some examples of interim orders commonly sought include:

Orders for exclusive occupation: one party asks the Court to make an order allowing them to occupy a property, to the exclusion of the other party, regardless of whether it is solely or jointly owned. This type of order can be sought to be made about an asset owned by one of the parties solely, or jointly owned by the parties. It is not necessary to show that the party seeking the order for exclusive occupation would likely receive or retain the subject property on a final basis.

Spousal maintenance: one party asks the Court to make orders for the other party to pay them a periodic sum of money. These payments can be increased or decreased throughout the course of proceedings, depending on the circumstances and applications before the Court. It is separate from child support, which relates to costs involved with raising a child. Instead, spousal maintenance is associated with the spouse’s reasonable living costs.

Partial property settlement for legal costs: one party may seek access to marital funds, for example from the sale of the former matrimonial home, or from a bank account in the other party’s name, to meet ongoing legal costs in resolving the entirety of their family law matter.

Injunctions: these orders restrain a party from doing something, such as drawing down on a mortgage, mortgaging a property, selling property or changing the structure of corporate entities, usually in one party’s sole control.

The Court’s approach when asked to make interim orders

Vernon & Vernon (2020) 62 Fam LR 573 provided a useful overview of guiding case law and legal principles for interim relief.

First step: Is it necessary and in the interests of justice to make this order now? Have circumstances arisen before the matter is ready for final hearing which make it appropriate for interim orders to be made?

Second step: If the first question is answered in the affirmative, the second step for the court is to exercise the power and determine interim orders to make. The result may be orders sought by one or the other of the parties, a combination of orders sought by each of the parties, orders the court determines necessary that may not be sought by either party, or a combination of orders made by the court and sought by the parties.

Balancing exercise

The Court must balance the ‘risk’ of unduly limiting what final order might be made, against the appropriateness of making a just and equitable interim order now. If a proposed interim order is not reversible, is it still appropriate to make now? Consideration is to be given as to whether, on a preliminary likely range of the overall outcome, a partial property settlement order is just and equitable. The court will not advance large percentages of the overall net property pool on an interim basis for this reason.

Conversely, consideration is also to be given to denying a party’s ability to seek orders to liquidate assets prior to the final hearing, for example, if a bank given notice of legal action due to mortgage arrears.

Conclusion

Each case turns on its circumstances, competing orders the parties are seeking to be made and of course, evidence. The Court will exercise its power to make interim orders conservatively, where evidence is limited so any exercise of power is likely to be imprecise; and be satisfied the remaining property will be adequate to meet the legitimate expectations of both parties at the final hearing (unless a contemplated interim order is capable of being reversed or adjusted later, if necessary).

Scenario – food for thought

Party A files an application seeking an interim order that Party A & B sell a jointly owned property, and net proceeds of sale be held in a lawyer’s trust account, pending further order.

Party B files a response seeking to retain the jointly owned property as a final order.

It is unlikely Party A would convince the Court it is appropriate and necessary to make an order selling the property now, in the absence of evidence the property was at risk of a bank sale and neither party has capacity to pay the mortgage.

*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice before taking any course of action.*