Children Issues: Effect of Final Parenting Orders

Introduction

Final parenting orders discharge all interim orders. Once final parenting orders are issued, the family court may not hear a parenting application seeking only interim orders. The Court can however hear a fresh parenting dispute. However, a parent cannot make an application for only interim orders after final parenting orders are issued as there will be no pending application for final orders.
Relevant Case Law

In the recent case of Sadasivam & Seshan [2019], the Family Court of Australia allowed an appeal by the father against a court order which purported to temporarily suspend an interim injunction that restrained parties from removing a young child from Australia and an interim airport watchlist order. This then enabled the mother to take the child to India to visit her family.

Court Analysis

The Family Court of Australia allowed the appeal but for reasons that were almost entirely unrelated to the grounds of appeal on which the father had sought to rely.

Although final orders that had been made by the primary judge did not in terms discharge those interim orders, the Family Court found that those interim orders were discharged in effect by a final parenting order having been made. It was in error then that further interim orders had been made after the final orders were issued which tried to suspend the operation of that interim injunction and interim airport watchlist order.

The mother’s application had been filed as an Application in a Case which the Family Court on appeal said was appropriate for interlocutory or procedural orders. Given the existence of final parenting orders, the Family Court on appeal found that the mother’s application could not be properly heard as an interim application.

Despite the mother’s use of the wrong form, the Family Court said that her application could only properly be heard as one commencing new proceedings under Part VII of the Family Law Act 1975. That new proceeding would require that primary judge decide whether the child could travel overseas with his mother since the parents could not agree over that issue in exercising their joint parental responsibility.

Conclusion

Since the court allowed the appeal, unless and until there were further parenting orders made, there was nothing to stop her from taking the child overseas. The father could however object in the exercise of his equal shared parental responsibility. Where the parties could not reach agreement, one of them could file and serve an Initiating Application seeking final parenting orders and interim parenting orders.

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