What happened

This was an interim hearing in a Family Court of Australia trial concerning parenting orders for two children of the relationship between Mr Jordan (father) and Ms Jordan (mother). The final hearing had been underway from 14 December 2009 and was adjourned part-heard on 17 December 2009 to resume on 29 March 2010; the judge made a suite of interim orders to operate pending further order (see Reasons generally and Orders). The discrete disputes at the interim stage were limited to two practical questions: the venue for changeovers between parents, and the time of return to the mother on alternate weekends during school terms (the mother proposed earlier returns; the father and Independent Children's Lawyer sought increased time for the father and changeovers at a nearby public venue).

There was an Apprehended Violence Order (AVO) made by the Local Court on 5 February 2009, in force until 4 February 2010 (Exhibit ICL4). The Independent Children's Lawyer and the father proposed changeovers at the McDonald’s Restaurant at G for reasons of convenience and proximity to the mother’s residence. The mother sought to retain changeovers at Rainbows Contact Centre in Broadmeadow, asserting safety concerns and that a contact centre would secure the father’s compliance.

Justice Austin concluded that, on the evidence adduced at the interim stage, it was in the children’s best interests to increase their time with the father to substantially more than the prior 24 hours per fortnight, and implemented a detailed interim regime: the children to live with the mother, and to spend alternate weekends (5:00 pm Friday to 5:00 pm Sunday) and specified school holiday time with the father; changeovers were to occur at McDonald’s at G with defined delivery/collection responsibilities; the father was restrained from consuming alcohol beyond the legal driving limit or any illegal substances while the children were in his care; denigration and corporal punishment were prohibited; and procedural directions were given for transcript preparation and an updated Family Consultant report (Orders and Reasons).

Why the court decided this way

The court’s reasoning rests on statutory direction and the evidence available at the interim stage.

Statutory framework

The paramount consideration is the children's best interests under s 60CC of the Family Law Act 1975 (see Reasons: CONCLUSION). The factors in s 60CC govern assessment of interim orders as they do final orders.
The Family Law Act contains a rebuttable presumption in favour of allocating equal shared parental responsibility (commonly referenced under s 61DA / the presumption framework). Justice Austin accepted that presumption exists but concluded that, at this interim stage, it should not be applied because the parties were in dispute about allocation of parental responsibility and the evidence was incomplete (Reasons: CONCLUSION paras 4–6).
Division 11 of Part VII governs perceived inconsistencies between family law orders and state AVOs; the judgment explicitly notes that to the extent the interim orders could be considered inconsistent with the AVO, Division 11 controls and family law orders prevail to that extent (Orders and NOTATION).

Evidentiary posture and pragmatic assessment

The proceeding was part-heard and the Family Consultant's evidence had not yet been received; the Court therefore limited itself to orders that could be justified by the uncontested evidence or reasonable inferences from the evidence (Reasons: CONCLUSION para 8).
The evidence adduced to date, and the parties’ history of intermittent contact, led the judge to infer that it was in the children's best interests for them to have more time with their father (Reasons: WEEKEND RETURN TIME para 3; CONCLUSION para 9).
On the venue dispute, the judge examined the terms and operation of the AVO and noted the absence of evidence that police enforcement had been required during the AVO’s operation. He then found that a public venue (McDonald’s) provided at least as much practical protection as a contact centre and was materially more convenient for the parties and children; hence the contact centre was not justified (CHANGEOVER VENUE paras 4–7).

Practical protective measures

To manage any residual safety risk and to support the interim time allocation, the Court imposed restraints on the father's alcohol consumption (not exceeding the legal driving limit) and on any illegal drug use while the children were in his care, restricted direct contact between the parents except as necessary to effect these orders, and required notification of medical emergencies and other logistical communications (see Orders).

In short, the combination of statutory priorities, the particular evidentiary picture at the interim stage, and practical assessment of convenience and safety produced the orders made.

Before and after state of the law

Before: The Family Law Act’s s 60CC and the presumption of equal shared parental responsibility already governed parenting orders. Courts routinely consider safety issues where AVOs exist and may order supervised contact or contact centre changeovers where safety concerns are evidenced.

After: This decision does not alter statutory law. It does, however, illustrate these operative principles at the interim stage:

The presumption of equal shared parental responsibility may be declined at interim stages where the allocation is contested and evidence incomplete.
The existence of an AVO does not automatically mandate contact-centre changeovers; a court will assess whether a public venue provides adequate protection and will weigh convenience to children and parents.
Courts can and will impose specific practical restraints (alcohol limits, drug prohibitions, communication restrictions) to manage interim risk.

The case therefore reiterates and exemplifies existing law rather than creating new principles.

Key passages with plain-English translation

Quoted passage (paraphrased and referenced in judgment):

"The Court is required to apply a rebuttable presumption that it is in the best interests of a children for the children's parents to be allocated equal shared parental responsibility..." (Reasons: CONCLUSION).
- Plain English: The law starts from the position that parents should share decision-making, but this is a presumption the court can depart from when it would not be appropriate, and that can be decided at interim stages based on available evidence.
"At an interim stage, the Court is only able to make decisions ... by reference to uncontested evidence or by reference to inferences that fairly arise from the evidence." (Reasons: CONCLUSION para 8).
- Plain English: When evidence is incomplete or contested, the court will only make interim decisions grounded in facts that are clear or that reasonably follow from what's been shown.
"In my view, a public venue such as the McDonald's Restaurant at G offers at least as much protection to the mother as does a contact centre." (CHANGEOVER VENUE).
- Plain English: A busy, public changeover point near the mother's home can be as safe as a formal contact centre, and may be better for the children because it is easier to get to.
"I am satisfied ... that it is in the best interests of the children to spend substantial and significant time with the father." (CONCLUSION).
- Plain English: Based on the evidence available now, the judge is convinced it would benefit the children to spend a lot more time with their father than they currently do.

Each of those passages grounds the court's orders: the decision-making standard (best interests and presumption), the evidentiary limits at interim stages, the practical safety assessment about venues, and the specific finding that increased time with the father benefits the children.

What fact patterns trigger this precedent

Patterns where this reasoning is likely to be followed include:

Part-heard or interim family law proceedings where parental responsibility allocation is contested and not yet resolved by final findings.
Cases where one parent seeks contact-centre supervised changeovers due to safety concerns, but there is an existing AVO in place and no evidence that enforcement intervention has been required in the life of the AVO.
Situations where a public venue is proximate and more convenient for children, so the court must choose between convenience and perceived safety of centre-based exchanges.
Cases where one parent presently has limited time with children (e.g., 24 hours per fortnight), and the court, on available evidence, considers that increasing that time is in the children's best interests.
Interim situations where procedural steps (Family Consultant reports, transcript) are incomplete and the court must make provisional arrangements grounded in uncontested or inferable matters.

The key triggers are (a) contested parental responsibility, (b) an AVO whose operation has not evidenced enforcement problems, and (c) the availability of a public, convenient changeover venue near the child's primary residence.

How later courts have treated it

This particular judgment is a district-level Family Court interim ruling that primarily applies statutory principles rather than novel common law. Later courts will treat it as an example of pragmatic interim management in contested parenting proceedings. Its precedential weight is in line with other Family Court ex tempore interim decisions: it will be cited as authority for the proposition that (i) AVOs do not automatically mandate contact-centre exchanges; (ii) the presumption of equal shared parental responsibility can be deferred at interim stages; and (iii) courts can impose practical protective conditions (alcohol/drug restraints, communication orders) while proceedings continue.

Practitioners should expect that the approach adopted here will be persuasive where facts are similar, namely: an existing AVO without enforcement incidents, a public venue close to one parent's home, and an evidence base that supports increased interim time with the non-resident parent.

Still-open questions

Several matters remain inherently fact-sensitive and unresolved by this decision:

Degree of deference to subjective safety concerns: the Court discounted the mother's subjective sense of safety absent objective evidence of enforcement issues during the AVO's operation. How much evidence is required before a court will prefer a contact centre to a public venue remains case-specific.
The threshold for declining to apply the presumption of equal shared parental responsibility at interim stages: while Justice Austin declined it here because of contest and incomplete evidence, later courts may apply the presumption at interim stages where there is clearer agreement or less dispute; guidance on when precisely the presumption should be applied mid-trial is not exhaustively spelled out.
Interaction with AVOs where AVO terms are broader or where the AVO expires mid-proceeding: this judgment treated a 12-month AVO expiring soon as not preventing public venue exchanges; different facts (longer-term AVOs, specific prohibitions or stipulations about proximity to the children's home) could produce different outcomes.
Enforceability and evidentiary demonstration of compliance with interim restraints (alcohol limits, drug prohibitions): practical monitoring and enforcement of such restraining conditions during ordinary changeovers or holiday periods can raise evidentiary and practical difficulties.
Whether increased interim time will or should influence final decisions about residence: the court noted the possibility of a change of residence was actively advocated by the ICL and father; it remains a substantive question whether interim increases in time indicate a trajectory leading to a change of residence at final hearing.

These questions underline that while Jordan & Jordan (Interim orders) provides clear guidance on interim management and pragmatic balancing of convenience and safety, outcomes will remain highly fact-dependent and require careful evidentiary presentation if parties seek more protective or more liberal interim regimes.

Judgment (26 paragraphs)

[1]

Jordan & Jordan (Interim orders) [2009] FamCA 1325 (17 December 2009)

[2]

Jordan & Jordan (Interim orders) [2009] FamCA 1325 (17 December 2009)

[3]

[2009] FamCA 1325

[4]

FAMILY LAW - CHILDREN - With whom a child lives - Part heard proceedings - What interim parenting orders should be imposed for the benefit of the children between now and the final conclusion of the proceedings - Pending further order the children live with the mother and spend time with the father each alternate weekend and half of school holidays

[5]

Family Law Act 1975 (Cth)

[6]

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER:

[7]

The trial of this matter is part-heard and is listed to continue before Justice Austin at 10:00 am on Monday, 29 March 2010 for a period of one day.
A transcript of the evidence given by the parties and the witnesses in these proceedings on:

[8]

Monday, 14 December 2009; 2. Tuesday, 15 December 2009;

[9]

shall be prepared at the Court's cost and provided by the Registrar to the Family Consultant.

[10]

The Family Consultant is directed to read the transcript of evidence and listen to the recorded evidence.
Pursuant to s 62G of the Family Law Act 1975, the Family Consultant is directed to prepare an update Family Report.

[11]

All previous parenting orders relating to the children K born ... January 2003 and R born ... March 2005 ("the children") are suspended.
The children shall live with the mother.
Each of the parties shall take all reasonable steps to ensure that the children spend time with the father as follows, or otherwise agreed:

[12]

During the New South Wales school terms, on each alternate weekend from 5:00pm Friday until 5:00pm Sunday, commencing the second weekend of each school term. 2. During the New South Wales school holidays at the end of terms 1, 2 and 3, from 9:00am on the middle Saturday of the holidays until 5:00pm on the next Saturday of the holidays.

[13]

During the New South Wales Christmas school holidays: 1. From 2:00pm on Christmas Day until 9:00am on 31 December, in Christmas holidays that commence in odd numbered years; 2. From 2:00pm on Christmas Day until 5:00pm on 1 January, in Christmas holidays that commence in even numbered years; 3. From 2:00pm on K's birthday in January until 5:00pm on 23 January, each and every year.

[14]

For a period of 3.5 hours on R's birthday as agreed or, failing agreement, from 4:00pm until 7:30pm on that day.
The operation of Order 7 is suspended on Mother's Day from 9:00am until 5:00pm.
For the purposes of implementing the time spent by the children with the father, the mother or her nominee shall cause the delivery and the father or his nominee shall cause the collection of the children at the commencement of the time to be spent with the father at the McDonalds Restaurant at G, New South Wales, and the father or his nominee shall cause the delivery and the mother or her nominee shall cause the collection of the children at the conclusion of the time spent with the father at the same place.
During the time that the children are in care of the father, the father is restrained from:
1. Consuming alcohol to an amount in excess of the New South Wales legal drink-driving limit; and
2. Consuming any illegal substance.
The father is restrained from contacting the mother directly or by telephone excepting for the purpose of giving effect to these orders unless, and until, the mother has given her written consent for such contact to occur.
Each party shall forthwith provide to the other their current address, landline telephone number, mobile telephone number and email address.
Each party is restrained from denigrating the other in the presence or hearing of the children, and from permitting the children to remain in the presence or hearing of another person denigrating the other.
Each party is restrained from causing or permitting the infliction of corporal punishment upon the children.
Each party shall notify the other of any medical emergency, illness or injury suffered by either of the children whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

[15]

The Family Consultant is requested to have the update Family Report prepared as soon as possible in advance of the resumption of the hearing on 29 March 2010.
To the extent that these orders could be considered inconsistent with an existing Apprehended Domestic Violence Order made against the father in favour of the mother by the Local Court on 5 February 2009, insofar as that Apprehended Domestic Violence Order also purports to protect the children as persons who live in a domestic relationship with the mother, that inconsistency is governed by Division 11 of Part VII of the Family Law Act 1975 and these orders prevail to the extent of any such perceived inconsistency.

[16]

IT IS NOTED that publication of this judgment under the pseudonym Jordan & Jordan (Interim orders) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

[17]

These proceedings concern the parenting orders that ought be made in respect of the children of the relationship between the applicant father and the respondent mother.
Those two children are K, born in January 2003, and R, born in March 2005 ("the children").
The parties have been separated since late 2005, although they were not divorced until 17 November 2007.
The present proceedings were commenced by the applicant father filing an Application on 10 May 2007. Although the proceedings have been live for over two and a half years, they are still yet to be concluded. The final hearing commenced on Monday 14 December 2009, and on Thursday 17 December 2009 was adjourned part-heard for completion on 29 March 2010. Procedural orders were made in order to bring the case to a conclusion on that date.
The question now arises as to what interim parenting orders should be imposed for the benefit of the children between now and the final conclusion of the proceedings.

[18]

The Independent Children's Lawyer has proposed that the orders set out within Exhibit ICL3 are appropriate to regulate the interim parenting regime. In particular, the Independent Children's Lawyer proposes that orders be made in accordance with Orders 2, 4, 5, 8, 9, 12, 13, 14 and 15 of Exhibit ICL3.
The father adopts the submissions of the Independent Children's Lawyer in all respects and also advocates for the making of those interim orders.
The respondent mother takes issue with the joint position of the Independent Children's Lawyer and the father in only two respects, namely:
1. The venue for changeovers; and
2. The time at which the children will return to the mother's care on alternate Sundays during school terms.

[19]

As to the first issue, the Independent Children's Lawyer and the father advocate for changeovers to be effected at the McDonald's Restaurant at G, which venue is chosen by reason of its proximity to the mother's home, so as to reduce inconvenience to both the children and her.
The mother wishes that changeovers continue to be effected at the Rainbows Contact Centre at Broadmeadow, which is the venue for changeovers established by existing interim parenting orders made on 20 March 2009 and 8 May 2009.
The reasons that the mother advances Rainbows Contact Centre as the appropriate changeover venue are, firstly, that she will feel safer at that venue, and secondly, she feels that the father will be more inclined to ensure his attendance at that venue. I find each of those reasons difficult to comprehend.
There is an Apprehended Violence Order in existence between the parties. It is in evidence as Exhibit ICL4. The order was made by the Local Court of New South Wales on 5 February 2009. It is in existence for a period of 12 months. It will expire on 4 February 2010.
The terms of that family violence order are as follows:

[20]

1 (a) The defendant must not assault, molest, harass, threaten or otherwise interfere with the protected person or a person with whom the protected person has a domestic relationship.

[21]

1 (b) The defendant must not engage in conduct that intimidates the protected person or a person with whom the protected person has a domestic relationship.

[22]

1 (c) The defendant must not stalk the protected person or a person with whom the protected person has a domestic relationship.

[23]

The defendant must not enter the premises at which the protected person may from time to time reside or work, or other specified premises (and no other premises are specified)
The safety of the mother is ensured, to the extent that the law is capable of ensuring it, by reason of the operable family violence order. I cannot appreciate how the mother's sense of safety is promoted by attendance at the Rainbows Contact Centre as opposed to a venue as public as the McDonald's Restaurant at G. In my view, a public venue such as the McDonald's Restaurant at G offers at least as much protection to the mother as does a contact centre. If the mother is genuinely apprehensive about her personal safety then she is of course at liberty to contact the police in order to ensure that the family violence order is enforced.
The family violence order has now been in force for 10 months and the parties have had continuing interaction with one another over that time in order to implement the existing parenting orders. The evidence is silent about the mother's need to have secured the intervention of police over the last 10 months, and so I draw the obvious inference that problems are unlikely to develop over the remaining two months of the life of the family violence order.
In so far as the second reason advanced for use of the Rainbows Contact Centre is concerned, I cannot appreciate how the mother regards that venue as inducing any greater compliance with the orders by the father. The father will either choose to adhere to the orders or breach them. The prospect of adherence or breach is no greater or lesser depending upon whether the changeover venue is McDonald's at G or the Rainbows Contact Centre at Broadmeadow.
The reasons advanced by the mother for use of the Rainbows Contact Centre are not persuasive.
There is another reason why the Rainbows Contact Centre ought be regarded as an inferior venue to the McDonald's Restaurant at G. That reason is that the Rainbows Contact Centre is a much more inconvenient venue for the parties than the McDonald's Restaurant at G. The mother lives at G. The father lives at S. Broadmeadow, where the Rainbows Contact Centre is established, is not on any direct route between those two residences. In fact, a route to Broadmeadow between those households would be particularly circuitous.

[24]

In respect of the second issue agitated between the parties, the mother asserts that the children should be returned to her by the father at 9:00 am on Sunday mornings on the alternate weekends when the children will spend time with the father.
The only reason advanced by the mother for that proposal is that the children will be required to rest in readiness for their resumption of school on the following Monday morning. I do not regard that reason as a persuasive one.
In the substantive proceedings the Independent Children's Lawyer and the father are actively advocating for a complete change of residence for the children, such that they are removed from the household of the mother and live with the father. For many months past the children have been seeing their father for 24 hours each fortnight. The evidence which I have so far heard leads me to the conclusion that the children should be spending more time with the father. As an interim measure, increasing the current regime of 24 hours per fortnight to 48 hours per fortnight is a desirable outcome.

[25]

Orders in respect of children are regulated under Part VII of the Family Law Act ("the Act").
When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects in determining the nature of the parenting orders which ought properly be made.
When making parenting orders the Court is mandated to regard the child's best interests as the paramount consideration. The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the children.
The Court is required to apply a rebuttable presumption that it is in the best interests of a children for the children's parents to be allocated equal shared parental responsibility for the children.
However, the presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence, or if the Court considers that it would not be appropriate for the presumption to be applied when making interim orders. The presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility.
Given that the parties in the substantive proceedings are at odds with respect to the allocation of parental responsibility, I do not think it appropriate at this interim stage to apply the presumption of equal shared parental responsibility. The ultimate decision in relation to the allocation of parental responsibility for the children will be made when final parenting orders are made.
In those circumstances, the Court is not obliged to consider living arrangements for the children that meet the definitions of "equal time" and "substantial and significant time" under the Act. The Court is at large with respect to the interim living arrangements for the children, which arrangements are determined by reference to their best interests. Their best interests are dictated by the factors set out within s 60CC of the Act.
At this stage, the proceedings are not concluded. The evidence is yet to be taken from the Family Consultant. The Court has not yet made findings in relation to the evidence, much of which has been the subject of contest. At an interim stage, the Court is only able to make decisions about orders that meet the best interests of the children by reference to uncontested evidence or by reference to inferences that fairly arise from the evidence.

[26]

I certify that the preceding thirty three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin.

Jordan & Jordan (Interim orders) [2009] FamCA 1325 (17 December 2009)

At a glance

Result

Key principles

Issues before the court

Plain English Summary

Cited legislation

Deep Dive

What happened

Why the court decided this way

Before and after state of the law

Key passages with plain-English translation

What fact patterns trigger this precedent

How later courts have treated it

Still-open questions

Judgment (26 paragraphs)

Jordan & Jordan (Interim orders) [2009] FamCA 1325 (17 December 2009)

Jordan & Jordan (Interim orders) [2009] FamCA 1325 (17 December 2009)

Legislation Cited (1)

AI Analysis