JORDAN & JORDAN (INTERIM ORDERS)

[2009] FamCA 1325

FAMILY COURT OF AUSTRALIA

JORDAN & JORDAN (INTERIM ORDERS) [2009] FamCA 1325

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

Family Law Act 1975 (Cth)

APPLICANT: Mr Jordan

RESPONDENT: Ms Jordan

INDEPENDENT CHILDREN’S LAWYER: Ms Callander, Legal Aid NSW

FILE NUMBER: NCC 1497 of 2007

DATE DELIVERED: 17 December 2009

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 17 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Not Applicable

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Boyd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Callander, Legal Aid NSW

Orders

1. 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.

2. A transcript of the evidence given by the parties and the witnesses in these proceedings on:

   a.Monday, 14 December 2009;

   b.Tuesday, 15 December 2009;

   c.Wednesday, 16 December 2009; and

   d.Thursday, 17 December 2009

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

3. The Family Consultant is directed to read the transcript of evidence and listen to the recorded evidence.

4. Pursuant to s 62G of the Family Law Act 1975, the Family Consultant is directed to prepare an update Family Report.

PENDING FURTHER ORDER

1. All previous parenting orders relating to the children K born … January 2003 and R born … March 2005 (“the children”) are suspended.

2. The children shall live with the mother.

3. Each of the parties shall take all reasonable steps to ensure that the children spend time with the father as follows, or otherwise agreed:

   a.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.

   b.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.

   c.During the New South Wales Christmas school holidays:

   i.From 2:00pm on Christmas Day until 9:00am on 31 December, in Christmas holidays that commence in odd numbered years;

   ii.From 2:00pm on Christmas Day until 5:00pm on 1 January, in Christmas holidays that commence in even numbered years;

   iii.From 2:00pm on K’s birthday in January until 5:00pm on 23 January, each and every year.

   d.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.

4. The operation of Order 7 is suspended on Mother’s Day from 9:00am until 5:00pm.

5. 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.

6. During the time that the children are in care of the father, the father is restrained from:

   a.Consuming alcohol to an amount in excess of the New South Wales legal drink-driving limit; and

   b.Consuming any illegal substance.

7. 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.

8. Each party shall forthwith provide to the other their current address, landline telephone number, mobile telephone number and email address.

9. 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.

10. Each party is restrained from causing or permitting the infliction of corporal punishment upon the children.

11. 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.

12. 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.

NOTATION

A.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.

B.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.

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)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1497 of 2007

MR JORDAN

Applicant

And

MS JORDAN

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. 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. 

2. Those two children are K, born in January 2003, and R, born in March 2005 (“the children”).

3. The parties have been separated since late 2005, although they were not divorced until 17 November 2007.

4. 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. 

5. 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.

Interim Proposals

1. 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. 

2. The father adopts the submissions of the Independent Children’s Lawyer in all respects and also advocates for the making of those interim orders.

3. The respondent mother takes issue with the joint position of the Independent Children’s Lawyer and the father in only two respects, namely:

   a)The venue for changeovers; and

   b)The time at which the children will return to the mother’s care on alternate Sundays during school terms.

Changeover Venue

1. 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. 

2. 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.

3. 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.

4. 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. 

5. The terms of that family violence order are as follows:

   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.

   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.

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

   3. 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)

6. 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.

7. 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.

8. 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.

9. The reasons advanced by the mother for use of the Rainbows Contact Centre are not persuasive.  

10. 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.

11. I do not regard it as being in the best interests of the children for them to be subjected to the extra travel required to use the Rainbows Contact Centre as the venue for changeover when other suitable and more convenient venues exist.

Weekend Return Time

1. 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. 

2. 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.

3. 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.

Conclusion

1. Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”).

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. I am satisfied on the evidence that has so far been adduced that it is in the best interests of the children to spend substantial and significant time with the father. I am satisfied that it is in their best interests to spend more time with the father than is currently provided for by the existing interim parenting orders. In forming those conclusions I have had regard for the provisions of s 60CC(2) and s 60CC(3) of the Act.

10. I have already remarked about the existence of the family violence order. The provisions of that family violence order are not inconsistent with the interim parenting orders that I propose to make. For that reason, Division 11 of Part VII of the Act does not apply. In my view, the terms of that family violence order offer sufficient protection to the mother should she continue to harbour any apprehension about the behaviour of the father.

11. For those reasons, I make parenting orders as follows.

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

Associate: 

Date:  17 December 2009