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Citation: Gearalt & Gearalt [2026] FedCFamC1F 656

Interim Parenting Orders Prevail Over an ADVO: Children Move to the Father in the Family Home, With the s 68P Safeguards Spelt Out

In Gearalt & Gearalt [2026] FedCFamC1F 656, Simpson J dealt with interim parenting orders agreed between the parents and the Independent Children's Lawyer (ICL). Under those orders the three children would live with the father in the former family home, even though a final Apprehended Domestic Violence Order (ADVO) restrained him from going into any place where the mother or the children live ([1], [3], [7]). The result: the Court made the consent orders. It declared that they were inconsistent with the ADVO, and that the ADVO was invalid to the extent of that inconsistency, but only so far as it stopped the father attending or living at the former home. It also restrained the father from going to the mother's new residence (Orders 1–3, 18–21; [12]). The important point is that when parenting orders cut across a family violence order, consent is not enough on its own. Section 68P of the Family Law Act 1975 (Cth) requires the Court to specify the inconsistency, set out in detail how the arrangements will work, explain the orders, and give reasons, and the judgment shows how that is done in a short, practical way ([9], [12]–[17]). All paragraph references below are to the judgment.

Why it matters: Families change, and sometimes the least disruptive arrangement for the children is one that a state family violence order does not allow. The answer is not to quietly ignore the ADVO. Here the parties put the inconsistency squarely in front of the Court, proposed orders that dealt with it, and kept the rest of the ADVO in place ([8], [13]). The Court's orders, not the parents' agreement, are what prevail over the ADVO, and only to the extent of the inconsistency ([13(e)]–[13(f)]; Order 20).

🧩 Facts and Issues

The history

  • The case had a lengthy history in Division 2 before it was transferred to Division 1 ([2]).
  • Interim consent orders made in October 2024 had the children living with the mother and spending supervised time with the father. The supervision requirement was removed by further consent orders in December 2025 ([2]).
  • In early 2026 a NSW Local Court made a final ADVO against the father for the protection of the mother and the children. Among other things, it restrains him from going into any place where the mother or the children live ([3]).
  • The judgment does not describe the conduct behind the ADVO, and these short reasons make no findings about family violence.
  • A four-day final hearing had been listed for November 2026 ([4]).

What changed

  • Before a case management hearing on 23 September 2026, the parties wrote jointly to the Court asking to vacate the final hearing because of developments relating to the children's care and welfare ([4]).
  • Their lawyers told the Court that significant changes to the parenting arrangements had occurred by agreement, and that the parents had agreed the children would live with the father for the time being ([5(a)], [5(c)]).
  • To make this work, the mother would move out of the former family home and the father would move in. The lawyers acknowledged this was contrary to the final ADVO ([5(d)]).
  • The parents would continue weekly family therapy, the parties agreed an updated expert report was needed before any final hearing, and they would keep working towards agreement ([5(e)]–[5(g)]).
  • With the parents agreed and the ICL supportive, the Court vacated the final hearing and listed a case management hearing for February 2027 ([6]).

The agreed orders

On 25 September 2026 the parties sent an agreed minute of orders to the Court ([7]). The key terms were:

  • the children live with the father in the former family home (Order 1; [7(a)]);
  • the mother vacates the home and does not attend it without the father's prior written agreement, except in an emergency (Orders 2–3; [7(b)]);
  • the children spend time with the mother as the parents agree in writing, at least once a week, with changeover at a street corner the family had used for changeovers before (Orders 4–5; [7(c)]);
  • continued family therapy, with the parents noting they intend to be guided by the family therapist and to revisit the arrangements after about four weeks (Notation F; Orders 4, 6–9).

The parties recognised the inconsistency with the ADVO and included four orders to deal with it ([8]):

  • Order 18: the father is permitted to attend at and live in the former home with the children.
  • Order 19: the parents do all things reasonably necessary to seek any variation of the ADVO needed to support the orders.
  • Order 20: under ss 68P and 68Q, a declaration that the parenting orders are inconsistent with the ADVO to the extent it prohibits the father from attending or living at the former home, and that the relevant ADVO term is invalid to that extent.
  • Order 21: under s 68B, the father is restrained from attending or entering the mother's residence at any time.

The orders also cover communication with the children, medical and school information, communication between the parents, an interim property payment and the family's pets (Orders 10–17, 22–28).

Issues

  1. Were the proposed interim orders in the children's best interests ([10]–[11])?
  2. Where the orders were inconsistent with an existing family violence order, did they and the Court's reasons meet the requirements of s 68P ([9], [12]–[17])?

⚖️ Applicable Law – Legislation, Regulations, Rules

  • s 69ZL of the Act: the basis for giving these short form reasons for the interim orders ([1]).
  • s 68P(2): where the Court makes a parenting order for a child to spend time with a person that is inconsistent with an existing family violence order, it must specify that the order is inconsistent (s 68P(2)(a)), give a detailed explanation in the orders of how the contact is to take place (s 68P(2)(b)), explain the order to the parties (s 68P(2)(c)), and include an explanation covering the matters in s 68P(2)(d) ([9]).
  • s 68P(2)(d)(v): relied on at [15] as requiring an explanation of the circumstances in which a person may apply to vary or revoke the orders ([15]).
  • s 68P(2A): the power to direct the ICL to explain the orders to the children. The Court declined to make that direction ([16]).
  • s 68P(3): the requirement for copies of the orders to be provided. The Court directed its Associate to do so ([17]).
  • s 68Q: the interim parenting orders prevail over the ADVO to the extent of the inconsistency, and the ADVO is invalid to that extent ([13(e)]; Order 20).
  • s 68R: the parents' lawyers were directed to explain its effect to the parents ([15]; Order 30). The judgment does not set out what s 68R provides.
  • s 68B: the source of the injunction restraining the father from attending the mother's residence (Order 21).

📌 Precedents Relied On

The judgment cites no case authorities. It is decided on the statute (ss 68B, 68P, 68Q, 68R and 69ZL), the parties' agreed minute and the submissions of the parties' lawyers and the ICL ([7]–[8], [13]–[14]).

🧠 Analysis

Issue

Can the Court make consent interim parenting orders that conflict with an existing ADVO? And if so, what does s 68P require the Court to do before it makes them?

Rule

The Court must be satisfied that the orders are in the children's best interests ([6], [10]). Where a parenting order is inconsistent with an existing family violence order, s 68P(2) requires the Court to specify the inconsistency, give a detailed explanation in the orders of how the arrangements will take place, explain the order to the parties, and cover the matters in s 68P(2)(d) ([9]). Under s 68Q, the parenting order then prevails over the family violence order to the extent of the inconsistency, and the rest of the family violence order stays in force ([13(e)]–[13(f)]).

Application

The best interests case was built on stability and support

Simpson J was satisfied the orders were in the children's best interests ([10]). The Court accepted that, following recent changes in the family's parenting dynamic, the living arrangements needed to change ([10]). Three features carried weight:

  • Minimal disruption: the change was implemented "in a manner which attempts to minimise disruption for the children, by enabling them to remain living in their home" ([10]).
  • Ongoing support: the parents intended to continue a range of therapeutic supports, including family therapy ([5(e)], [10]).
  • Cooperation: the orders were "the product of co-operative parenting and child focussed responses by both parents to the difficult circumstances presently confronting the family" ([11]).

The Court also noted that the orders "prioritise the safety and developmental needs of the children in the interim, acknowledging their respective ages and maturity" ([11]). The ICL's submissions about the benefits of the agreement also assisted the Court ([14]).

The parties named the inconsistency instead of working around it

The agreed minute did not leave the conflict with the ADVO to be sorted out later. It included an order permitting the father to live at the home, an order requiring the parents to seek any necessary variation of the ADVO, a declaration of inconsistency, and a fresh protective restraint (Orders 18–21; [8]). The Court was satisfied that the proposed orders, together with Orders 18–21, addressed s 68P(2)(a) and s 68P(2)(b) "with sufficient specificity as the Act requires" ([12]).

The override is narrow, and protection continues

The declaration in Order 20 is limited. The ADVO is invalid only to the extent it prohibits the father from attending or living at the former home (Order 20). The Court was satisfied that each parent understood that the remaining terms of the ADVO "remain valid and binding on the father" ([13(f)]). The orders also add protection in the other direction: the father is restrained under s 68B from attending or entering the mother's residence at any time (Order 21), and the mother may not attend the former home without his written agreement, except in an emergency (Order 3).

Understanding was confirmed through the lawyers

Section 68P(2)(c) requires the Court to explain the order to the parties ([9(c)]). Each parent had competent lawyers who knew about the inconsistencies with the ADVO ([13]). Relying in part on their submissions at the case management hearing, the Court was "comfortably satisfied" that each parent understood ([13]):

  • the mother would move out and the father would move in and live with the children;
  • the inconsistencies between those arrangements and the ADVO, and their consequences;
  • the parents' intention to seek a variation of the ADVO;
  • that under s 68Q the interim orders prevail over the ADVO to the extent of the inconsistency;
  • that the rest of the ADVO remains valid and binding on the father.

Explaining how to come back to Court

For s 68P(2)(d)(v), the Court relied on the parents having lawyers to help them return to Court if circumstances change. It also directed those lawyers to explain the liberty to apply, how a parent could use it if they become unrepresented, and the effect of s 68R ([15]; Orders 29–30). The liberty to apply is on short notice, with particular attention to the living arrangements and the ADVO orders (Orders 1–3, 18–21; [15]).

No direction for the ICL to explain the orders to the children

Simpson J declined to direct the ICL under s 68P(2A) to explain the orders to the children. The Court was satisfied the parents would manage any necessary explanation of the changed living arrangements, with the benefit of family therapy ([16]). The Associate was directed to provide copies of the orders as s 68P(3) requires ([17]).

Conclusion

The consent interim orders were made. The Court was satisfied that they were in the children's best interests because they kept the children in their home, built in therapeutic support and reflected cooperative, child-focused parenting ([10]–[11]). Because the orders were inconsistent with the ADVO, the Court specified the inconsistency, confirmed the orders were detailed enough, was satisfied the parents understood the orders and their consequences, dealt with how to return to Court, and directed that copies of the orders be provided ([12]–[17]). The ADVO is invalid only to the extent it stops the father attending or living at the former home. Its other terms continue to bind him (Order 20; [13(f)]).

These are interim orders. The parties expect an updated expert report before the case returns in February 2027 ([5(f)], [6]).

🧠 Take-Home Lesson

  • An ADVO does not lock in the parenting arrangements, but it must be dealt with openly. The Court can make parenting orders that are inconsistent with a family violence order, if the s 68P steps are followed ([9], [12]).
  • Name the inconsistency in the orders. A good minute specifies exactly which ADVO term is affected and declares the inconsistency (Orders 18–20; [8], [12]).
  • Keep the override narrow. Here the ADVO was invalid only to the extent it stopped the father attending or living at the former home. Everything else still binds him ([13(f)]; Order 20).
  • Replace protection, don't just remove it. The s 68B restraint on the father attending the mother's residence and the limit on the mother attending the home kept clear boundaries in place (Orders 3, 21).
  • Make sure each party understands the consequences. The Court relied on the parents' lawyers confirming that each parent understood the inconsistency, the effect of s 68Q, and that the rest of the ADVO still applies ([13]).
  • Follow through in the state court. The parents were ordered to seek any variation of the ADVO needed to support the orders (Order 19; [13(d)]).
  • Plan for change. Liberty to apply on short notice and directions for the lawyers to explain how to use it address s 68P(2)(d)(v), especially if a parent later becomes unrepresented ([15]; Orders 29–30).
  • Support workers and McKenzie friends: if a family's agreed arrangements would conflict with an ADVO, remember that here it was the Court's orders, not the parents' agreement, that prevailed over the ADVO. Encourage the parties to get legal advice and to put the inconsistency, and the s 68P matters, before the Court ([8], [13]).
"The proposed orders are the product of co-operative parenting and child focussed responses by both parents to the difficult circumstances presently confronting the family." ([11])
"When parenting orders cut across an ADVO, consent is only the start. Name the inconsistency, spell out the arrangements, and keep the rest of the protection in place." (FLAST takeaway)
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