Carda & Fusco
[2025] FedCFamC2F 738
•3 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Carda & Fusco [2025] FedCFamC2F 738
File number(s): PAC 208 of 2025 Judgment of: JUDGE NEWBRUN Date of judgment: 3 June 2025 Catchwords: FAMILY LAW – CHILDREN – Interim hearing. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CD, 60CE, 60CG, 61D. Cases cited: Banks & Banks (2015) FLC 93-637
Jollie & Dysart [2014] FamCAFC 149
Tibb v Sheean (2018) 58 Fam LR 351
Division: Division 2 Family Law Number of paragraphs: 58 Date of last submission/s: 29 May 2025 Date of hearing: 9 May 2025 Place: Parramatta Counsel for the Applicant: Ms Rebehy Solicitor for the Applicant: Broun Abrahams Burreket Solicitor for the Respondent: Ms Chivunga, Tee Legal ORDERS
PAC 208 of 2025 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CARDA
Applicant
AND: MS FUSCO
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
3 JUNE 2025
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.The child X born in 2019 (“the child”) will live with the Father:
(a)From 3.00 pm or after school Friday 6 June 2025 until 9.00 am or before school on Monday 9 June 2025;
(b)From 3.00 pm or after school Friday 20 June 2025 until 9.00 am or before school on Monday 23 June 2025.
2. Thereafter, the child will live with the Father:
(a)During school term in a two-week cycle as follows:
(i)Week 1: from 3.00 pm or after school Wednesday until 9.00 am or before school on Friday;
(ii)Week 2: from 3.00 pm or after school Friday until 9.00 am or before school on Monday.
(b)During school holidays as follows:
(i)For the first half of the school holidays in odd numbered years; and
(ii)For the second half of the school holidays in even numbered years.
(c)During special occasions despite any inconsistent provision herein as follows:
(i)From 12.00 noon Christmas Eve until 4.00 pm Christmas Day in even numbered years;
(ii)From 4.00 pm Christmas Day until Boxing Day at 5.00 pm in odd numbered years;
(iii)From 9.00 am 31 December until 12.00 noon 1 January in odd numbered years;
(iv)From 9.00 am to 6.00 pm on Father’s Day;
(v)If the child is not otherwise in his care, on the child’s birthday from 3.00 pm to 7.00 pm if it occurs on a school day and 9.00 am to 1.00 pm if it is a non-school day;
(vi)From 3.00 pm until 8.00 pm on the Father's birthday.
3.The child will live with the Mother:
(a)During school term at all other times he is not otherwise living with the Father;
(b)During school holidays as follows:
(i)For the first half of the school holidays in even numbered years; and
(ii)For the second half of the school holidays in odd numbered years.
(c)During special occasions as follows:
(i)From 12.00 noon Christmas Eve until 4.00 pm Christmas Day in odd numbered years;
(ii)From 4.00 pm Christmas Day until Boxing Day at 5.00 pm in even numbered years;
(iii)From 9.00 am 31 December until 12.00 noon 1 January in even numbered years;
(iv)From 9.00 am to 6.00 pm on Mother's Day;
(v)If the child is not otherwise in her care, on the child’s birthday from 3.00 pm to 7.00 pm if it occurs on a school day and 9.00 am to 1.00 pm if it is a non-school day.
(vi)From 3.00 pm until 8.00 pm on the Mother's birthday,
Changeover
4.On school days changeover shall occur at the child’s school. For the purpose of changeover on non-school days, the Mother and Father shall meet at the McDonalds Restaurant at B Street, Suburb C.
Schooling
5.The Mother and the Father will forthwith do all things and sign all documents as may be required to continue the child's education and attendance at D School, at the Father's expense.
6.The Mother and Father are restrained from changing the child's school enrolment from D School and E School, unless agreed in writing between them.
7.The Mother and the Father shall each be permitted to attend school events of the child to which parents are permitted to attend, including but not limited to assemblies, carnivals and concerts.
Information sharing
8.The Father shall notify the Mother at least four weeks prior of any intention to change his residential address, including details of the proposed change of residential address and details as to who will be living in the new residential address.
9.The Mother shall notify the Father at least four weeks prior of any intention to change her residential address, including details of the proposed change of residential address and details as to who will be living in the new residential address.
10.Each parent shall keep the other parent informed as to their current residential telephone number, mobile telephone number and email address and advise each other within two days of any such change.
11.Each parent shall make arrangements at the child's schools to ensure that they can obtain the following information and documents at their own cost:
(a)A copy of all school reports for the child;
(b)Notification for school activities that they may decide to attend;
(c)Notification of parent/teacher nights and the school is informed that it is both parent's desire to attend such events;
(d)In the event of the child being taken from the school or pre-school for an emergency, remedial or correctional treatment that both parents be informed as soon as practicable.
12.In the event of the child suffering a medical emergency requiring medical attention while in the care of either parent:
(a)The other parent is to be notified as soon as practicable;
(b)That the other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable;
(c)That the medical practitioner or medical facility be advised that the other parent has access to the child's medical records and the information obtained with them upon request.
Non-denigration
13.Pursuant to section 68B (1) of the Family Law Act 1975 (Cth), the Mother and Father be and hereby are restrained by injunction from:
(a)Abusing, denigrating, demeaning or belittling the other parent, their partner and/or members of their family in the presence of or hearing of the child;
(b)Allowing or permitting any other person to abuse, denigrate, demine or belittle the other parent, their partner and/or members of their family in the presence of or hearing of the child, where that parent is present;
(c)Discussing these proceedings with the child.
Inconsistency with Family Violence Order
14.For the purposes of section 68P(2)(a) of the Family Law Act 1975 (Act), clauses of this Order may be declared to be inconsistent with clauses 3B and 9C of the provisional Apprehended Domestic Violence Order dated early 2025 and pursuant to section 68Q(1) of the Act, the provisional Apprehended Domestic Violence Order is invalid to the extent of the inconsistency.
Mother’s rent
15.To facilitate these Orders, should the mother elect to rent accommodation for herself and the child in Suburb F, Suburb G, Suburb H, Suburb J, or Suburb K, or such other suburb as may be agreed between the parties in writing, then the father shall pay the bond and rent of up to $850 per week of a lease of an apartment (or house) of the mother's choosing in that suburb for a period of 6 months in advance.
Appointment of Independent Children’s Lawyer
16.Pursuant to Section 68L of the Family Law Act 1975 (Cth) the child X born in 2019 be independently represented and the Court requests that the Legal Aid Commission provide that representation.
17.The solicitors for the parties are to forward copies of all applications, responses, affidavits and any other relevant documents to Legal Aid NSW for the attention and use of the Independent Children’s Lawyer when appointed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
The child the subject of this interim hearing is X born in 2019 (“the child”), now aged 6 years.
The father is aged 62 years, and the mother 45 years.
Interim orders made by Senior Judicial Registrar Dodson on 12 March 2025 provided for the child to spend time with the father as agreed between the parties, and in the absence of agreement, for the child to have supervised contact with the father each alternate Saturday for five hours through L Contact Service.
PROPOSALS
This interim hearing relates to the father’s Further Amended Initiating Application filed 9 April 2025 in which he seeks, inter alia, that the child live with him and spend 4 nights each fortnight with the mother together with holiday time or, in the alternative, inter alia, the child live with the mother and spend time with the father 5 nights each fortnight. The father seeks that himself and the mother hold joint decision-making responsibility for the child. He also seeks orders that place the child on the Family Law Watchlist, and that the child be returned to his previous school to continue his education at the father’s expense.
The mother opposes the father’s application and seeks interim orders that the child continue to live with her, and that the father have supervised contact with the child for five hours each alternate Saturday. She also seeks orders that the father obtain a current mental health plan and participate in a Men’s Behaviour Change course and Parenting After Separation course.
MATERIAL RELIED UPON
The father relied upon:
(a)Further Amended Initiating Application filed 9 April 2025;
(b)His affidavit filed 9 April 2025;
(c)Financial Statement filed 9 April 2025;
(d)Notice of Child Abuse, Family Violence or Risk filed 17 January 2025;
(e)Child Impact Report filed 6 May 2025;
(f)Amended proposed Minute of Order of 26 May 2025.
The mother relied upon:
(a)Her affidavit filed 10 April 2025;
(b)Notice of Child Abuse, Family Violence, or Risk filed 14 February 2025;
(c)Amended Response filed 8 May 2025;
(d)Written submissions of 29 May 2025.
The following documents became exhibits:
(a)Exhibit A: Exhibits to Affidavit of Mr Carda filed 9 April 2025;
(b)Exhibit B: Child Impact Report dated 6 May 2025;
(c)Exhibit C: Material produced by NSW Police under s 67ZBE;
(d)Exhibit D: Father’s tender bundle pages 56 – 69, 78, 85, 110, 111, 104 – 106;
(e)Exhibit E: Housing document;
(f)Exhibit F: Correspondence with school; and
(g)Exhibit G: Mother’s tender bundle pages 16 and 17 – 25, 155 – 163, 186, 8, 27 – 29, 31 – 33, 38 – 39.
EVIDENCE
In determining this case, the Court has had regard to all the written evidence referred to above together with the parties’ submissions. Evidence of the parties relevant to the Court’s determination will be considered either in this section or whilst addressing the section 60CC considerations (i.e. section 60CC of the Family Law Act 1975 (Cth) (“the Act”)) (see below).
Agreed and undisputed facts
The father is aged 62 years. The mother is aged 45 years.
The parties’ relationship began in about early 2016 and they finally physically separated in about late December 2024.
The mother acknowledges (see her Case Outline) that the child has a positive and loving relationship with both parents.
Prior to about late December 2024 the child was living with the parents in the former matrimonial home at Suburb M. In about late August 2024 the mother travelled to Country N and stayed there for about a month (she had surgery there) having left the child in the sole care of the father. In about late December 2024 the mother unilaterally decided to leave the former matrimonial home with the child and she thereafter lived in a women’s refuge with the child. The father began to spend supervised time with the child in about March 2025.
RELEVANT LEGAL PRINCIPLES
Section 60B of the Act sets out the objects of Part VII of the Act which are to ensure that the best interests of a child are met, including by ensuring their safety, and to give effect to the Convention on the Rights of the Child.
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
The Court must have regard to the factors outlined in section 60CC of the Act before determining what is in the child’s best interests. The matters to consider are set out in subsection (2) of section 60CC and, if the child is an Aboriginal or Torres Strait Islander child, the Court must have regard to the matters set out in subsection (3).
The Court, or any other person cannot require the child to express his or her views in relation to any matter: section 60CE. Although, the Court can have regard to any views that are expressed by a child where such views are contained in a report given to the Court: section 60CD(2)(a).
Section 60CG of the Act requires the Court, when making a parenting order, to ensure to the extent possible that the order does not expose a person to an unacceptable risk of family violence and is consistent with an existing family violence order.
When making a parenting order that deals with the allocation of responsibility for making decisions about major long-term issues in relation to the child the Court may provide for joint or sole decision-making in relation to all or specified major long-term issues: section 61D(3).
The Court has to consider each statutory matter in section 60CC, even if express discussion is not necessary (Jollie & Dysart [2014] FamCAFC 149 at [49]; Banks & Banks (2015) FLC 93-637 at [49]; Tibb v Sheean (2018) 58 Fam LR 351 at [83]–[85]). Accordingly, the Court will discuss each factor to the extent necessary, having regard to all considerations.
The best interests of the child
Section 60CC considerations
(2)(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of: (i) the child; and (ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(2A)(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child)
(2A)(b) any family violence order that applies or has applied to the child or a member of the child’s family
Family violence and conflict
The mother alleges that the father perpetrated family violence and other adverse behaviour against her during their relationship. Significant denials are made by the father in this context.
The mother alleges in her affidavit:
(a)The father grabbed the hand of the male person and violently pulled him away from the mother after this man had hugged and kissed the mother for her birthday. The father a short time later was verbally abusive towards the mother.
(b)The father assaulted a male person during a heated verbal argument after the parties wedding in Country N.
(c)During the parties’ relationship the father drank significant alcohol and combined this with pain medication. She alleges that when he drank he was extremely aggressive, angry and loud.
(d)The father would yell at the mother, scream at her and call her derogatory names while she was holding the child.
(e)During sexual intercourse the father would place his hand around the mother’s neck as part of a sexual fetish. The mother alleges that to prevent the father from getting angry and hurting her, she would often just submit even though she didn’t consent.
(f)The father refused to allow the mother’s parents and friends to attend the child’s birth.
(g)In January 2024 the father pushed the mother out of their bed and threw her pillow onto the floor after the mother had arrived home from a concert with her father.
(h)The father came to her workplace and watched her after he had become aware that the mother was working with a male colleague.
(i)In early June 2020 the father aggressively grabbed the mother’s wrists, and stood on her foot to try and prevent her from holding her phone. The mother reported the matter to the police. The police asked the mother if she was afraid and the mother said no because the police had told her that they would arrest the father and she was scared of the ramifications of saying yes.
(j)On 20 December 2024 the father started arguing with the mother. The parties were in a car. The mother alleges the father was driving erratically and the child was crying. She alleges the father threatened to kill them. The mother called the police from the car. The father was yelling at the mother aggressively. The mother reported to the police. The police told the mother that since both she and the child were okay they could go home. The mother told the police she was scared.
(k)After the child was born in 2019, the mother didn’t work for 10 months. She was receiving Centrelink payments. The mother alleges she had no access to monies and was restricted from knowing anything about the father’s financial affairs. She alleges she was not allowed to communicate with the child’s godfather. The mother alleges that 10 months after the child was born she was running out of Centrelink monies and the father refused her request for a weekly allowance. The mother decided to return to work on a casual basis at O Company. The mother alleges that at this time the father helped take care of the child when he was not working. She alleges that when she returned to work after maternity leave she worked about 20 to 25 hours a week. She alleges that when the child started school she started working full-time as she was offered a role as a supervisor.
(l)The father verbally abused the mother.
(m)There is a current ADVO in place, being a provisional order, for the protection of the mother and child against the father. It is dated early 2025. The grounds for the application include allegations by the mother of financial control (including allegations of financial control as discussed above), and the father attending her workplace and watching her by reason of alleged inappropriate clothing worn by the mother. The mother alleges that arguments occurred in front of the child. The grounds refer to alleged gaslighting and verbal abuse by the father. The mother alleged that she was scared that if the father finds out where they are staying and the name of the school where the child now attends that the father will take the child and prevent the mother from any access.
(n)In a patient health record from 1 April 2019, is recorded that the mother finds the father verbally abusive. Another patient record dated 18 November 2019 refers to the mother reporting that the father has changed positively since a previous incident of her leaving the home. A patient health record for 11 November 2019 records the mother informing staff that the father was not aggressive as he has not been physically aggressive. The same record refers to emotional abuse by the father. Clinical notes for 24 August 2018 records, inter alia, that the father has anger management issues and yells at the mother when frustrated. Clinical notes for 31 December 2018 record, inter alia, that the mother does not feel threatened by the father.
On the other hand, other evidence before the Court suggests:
(a)The parties were in a loving and committed relationship until the mother left on a final basis on 21 December 2024 (the mother’s affidavit Page 4). The mother states that the child and the father spent a lot of time together and she agrees that they have a relationship.
(b)The mother left for Country N in August 2024 and arrived back in Australia in September 2024. The mother had surgery in Country N. The child was left in the father’s care in Sydney.
(c)In the mother’s affidavit she alleges that the father bought her gifts for special occasions or because they were on holidays. She alleges the father would offer to purchase gifts for her. She recalls one day in about 2022 when the parties were in a store and the father was offering to purchase an expensive gift for her.
(d)The parties attended psychologists together for consultations during their relationship.
(e)The mother states that since the birth of the child the parties have shared care arrangements for the child, albeit most critical care of the child such as bathing was done by the mother. The mother states that the parties had shared responsibilities when it came to the child. She states that the parties discussed the child’s schooling, and that some meetings with the child’s teachers were arranged by the father without the mother’s knowledge.
The father for his part alleges that he was the child’s primary carer having retired from his business when he was about 50 years of age. He alleges that he cared for the child in the mother’s absence when she attended social events, appointments for herself and so forth. He alleges that in 2021 when the child was about two years of age, he continued to care for the child when he was not at childcare or with the mother.
(f)The mother states that she drives a car; she states she paid $15,000 towards it and the father paid $35,000 towards it. She states the father topped up her savings. The mother states that she has her own property at Suburb P which she bought in 2016 with her savings and a mortgage.
(g)The father’s text message to the mother at the time of final physical separation alleges, inter alia, that the mother’s years of abuse and harassment towards him had taken its toll upon him. He alleges that for years he has pleaded with the mother for her to seek mental health assistance as recommended by Dr Q. He alleges the mother has refused to allow him to take the child on holidays because she was working.
(h)The father alleges that the mother was hostile towards him over the years. For example, in an email to Dr Q on 15 December 2022 the father alleges the mother has exhibited passive-aggressive/coercive control upon him and continually pushes buttons to bring the father down. The father denies the mother’s allegations that he was aggressive, coercive or controlling. He denies driving erratically in the car as alleged by the mother on 20 December 2024, and he alleges the mother was screaming at him in the car. The father denies any sexual or physical violence upon the mother. The father denies assaulting a driver with a head-butt. The father denied stalking the mother as alleged by her. The father denied (to the author of the Child Impact Report) the allegations made by the mother about his alleged gambling habits. He alleged that he rarely attended the casino after the child was born.
In a COPS record relating to the police interviewing the mother in late December 2024, the mother told the police that the father had committed no physical assaults against her or the child. The record states that the police hold no fears for the mother’s safety and believe that she is fearful of the father having full custody of the child.
In a COPS record relating to the police interviewing the mother on about 2 June 2024 in relation to an incident between the parties where the father reacted adversely to the mother secretly recording the father on her telephone, the mother told the police that at no stage during the incident did she feel fearful or fear for her safety. The record states that the police clarified with the mother that she has never been threatened with physical violence and has never received threats relating to her safety. The mother told the police she does not hold any immediate fears for her safety as she has been residing with the father for seven years. The mother had told the police of alleged controlling behaviour by the father and in this context had stated that the father often makes comments such as when the parties separate she will not get any of the father’s money.
(i)The father denies that he has issues with alcohol. He states that he voluntarily submitted to a CDT test on 18 February 2025 and his results were unremarkable.
(j)The supervision contact report dated 29 March 2025 refers to the visit between the child and the father being positive. The visit was held at the former matrimonial home. The child was affectionate to the father and happily answered the father’s questions. The child and the father played together. Another supervised visit on 5 April 2025 was also reported to be positive with the father observed to be attentive and patient, providing well-balanced meals and offering positive reinforcement while maintaining appropriate parental discipline. Supervised visits on 13 April 2025 and 26 April 2025 were positive; the visits were held at the former matrimonial home.
(k)In a clinical note from Dr Q dated 26 August 2022 he states, inter alia, “Turns out (the mother’s) one-sided history to me is not entirely consistent or true and she’s admitting of that today.”
Taking into account the above discussed evidence, should the child spend substantial and significant unsupervised overnight time with the father, the Court does not have any significant concern that the child will be exposed to an unacceptable risk of harm in the father’s care. There is a significant suggestion on the material before the Court that during the parties’ relationship there was, at times, significant verbal conflict between them occasionally in the presence of the child, and the Court’s interim orders should be crafted to minimise the risk of the child being exposed to any parental conflict prospectively.
The evidence suggests that the child has a close relationship with each parent and that the parents are devoted and competent parents to him. The supervision contact reports and Child Impact Report in evidence similarly suggest this to be the case. Apart from the child’s exposure to parental conflict, there is no evidence that the father has abused the child. There is a significant suggestion on the evidence before the Court that the father at least provided significant regular care to this child during the parties’ relationship, with the Court observing that there is a dispute between the parties as to which parent was the child’s primary carer during the relationship. The Court observes the father retired from full-time employment when aged 50 years noting that he is now aged 62 years.
Further, in this context of interim risk assessment, it is particularly telling that the mother chose to travel to Country N in late 2024 leaving the child in the care of the father. It is also not without relevance that at about the time (Christmas 2024) the mother chose not to return the child to the former matrimonial home and went with the child to stay at a refuge she informed the police that her particular concern was her fear that the father would retain the child in his care and not permit the mother to see the child.
The mother alleges the father perpetrated significant coercive and controlling behaviour during their relationship, which is denied by the father. In this context, it is not without relevance that the mother made numerous allegations of financial control and yet refers to the father, inter alia, providing significant funds to her to buy a motor vehicle. The father, for his part, and contrary to the mother’s allegations, alleges that the mother perpetrated adverse behaviour towards him during their relationship which caused him to experience significant stress. The Court is unable to determine these competing allegations at this interim stage. In any event, the Court has no significant concern that should the child now begin to spend unsupervised overnight time with the father that the father might perpetrate some form of coercive and controlling behaviour towards the child (or the mother); there is no significant suggestion, on the evidence before the Court, that the father has exerted coercive and controlling behaviour towards the child to date.
Should the father spend five nights each fortnight (with the child’s time graduating during a short time period to such five nights because whilst the child was in the father’s sole care from late August 2024 to late September 2024 and had otherwise been living with the parties prior to late December 2024, he has been spending supervised time with the father since about March 2025) during school term times with the child, together with shared holiday time, again the Court would not be concerned that the child will be exposed to any unacceptable or significant risk of harm. Changeovers, as considered below, should occur at either school or a public restaurant to minimise conflict at changeovers. The material before the Court suggests that the parties had satisfactorily co-parented the child whilst they lived with the child in the former matrimonial home at Suburb M up to late December 2024, and the child had enjoyed a relatively stable life there and whilst attending the D School (and see below the Court’s discussion regarding the schooling issue). There is a significant prospect that the parties will be able to co-parent the child if he is spending five nights each fortnight with the father and spending holiday time with him.
(2)(b) any views expressed by the child;
On the issue of schooling, the author of the Child Impact Report noted that the child, on interview 1 April 2025, had expressed feeling angry when the mother makes him confused and attributed this to the changes in his routine, including a new school and living arrangements. The mother had stated that she is aware that the child misses his friends, albeit stating that they would now be in a different year group as the child has repeated kindergarten. The Court observes that the Semester 2 school report for the child at D School was a positive report for the child at that school. The Court takes the above matters into account, whilst noting the tender age of the child.
(2)(c) the developmental, psychological, emotional and cultural needs of the child;
In respect to this consideration, the Court refers to the Child Impact Report.
(2)(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
The Court refers to its discussions above in relation to safety of the child.
There is a significant suggestion in the material before the Court that there was, at times, significant verbal conflict between the parties, occasionally in the presence of the child.
The author of the Child Impact Report stated that the child’s abrupt removal from his home, separation from the father, and transition into a different community and school at a young age may have disrupted the child’s sense of security. She stated that the lack of consistent routines, familiar environment, and ongoing contact with both parents create feelings of confusion, fear, and instability, in which children, especially those under the age of 6, require consistency and stability to support their development.
At this interim stage, subject to the above matters, there is a significant suggestion on the material before the Court that both parents have such capacities.
(2)(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
The child has a meaningful relationship with the mother and will benefit from a continuance of that relationship. The mother alleges that she has been the child’s primary carer from birth to date. On the other hand, the father alleges that because he retired from his business when he was about 50 years of age he has not worked full-time since the birth of the child and has dedicated his time to looking after him, and that he has been the child’s primary carer.
The child has a meaningful relationship with the father. The child will benefit from the continuance and maintenance of that relationship. Again, the father had been providing at least substantial parenting care to the child prior to Christmas 2024 when the mother left with the child from the former matrimonial home. The child would appear to have enjoyed his supervised time with the father in 2025. The child interacted well with the father at the interview for the Child Impact Report in April 2025. Should the child spend five nights each fortnight during school terms (again with the child’s time graduating during a short time period to such five nights), and holiday time, there is a significant prospect that the child’s meaningful relationship with the father can be continued and maintained.
(2)(f) anything else that is relevant to the particular circumstances of the child;
The Court will now consider the interim schooling issue.
The father alleges that the child commenced pre-kindergarten at D School in 2023. D School is a co-educational school. In 2024 he commenced kindergarten there. He alleges he continued to care for the child when the mother was at work as well as when she was home. He alleges he took the child to and from school, supervised him, dressed him and engaged in all his activities. He alleges that in mid-2024 the parties were informed by the child’s school that the child should repeat kindergarten. The father alleges that he did homework with the child most afternoons and that the child’s schoolwork improved during 2024. The father alleges the child enjoyed his school and the community it offered. He alleges the child formed many strong friendships with his peers.
The child did not return to his school at D School in early February 2025. The child has been enrolled in a public school at Suburb R at the instance of the mother. The father states that if the Court orders the child’s return to D School he is willing to financially assist the mother in securing a rental property in an area convenient to the child’s school. He stated in his affidavit that pending further order he can subsidise the mother’s rent up to $600 a week until they have the opportunity of mediating a financial settlement. In oral submissions, the father’s counsel stated that the father was prepared to pay 6 months’ rent at $850 per week and a bond so that the mother can live closer to the child’s former school at D School. These submissions were reflected in the father’s Minute of Order sent to the Court on 26 May 2025. He refers to two-bedroom apartments in the Suburb M area available for rent in a price range of less than $1,000 per week; various rental advertisements refer to two-bedroom apartments being available for rental at about $850 per week.
The father states that in view of the allegations made by the mother he proposes that all changeovers take place at the child’s school. On the other hand, the mother proposes, in the event that the Court orders unsupervised time between the child and the father, that changeover occur at the McDonald’s restaurant at Suburb C.
In an email dated 29 January 2025 from the mother to the child’s former school at D School, the mother stated to the school principal, inter alia, that she hopes to resume “our relationship with [D School] as soon as possible and will keep you informed accordingly.”
At the supervised visit between the child and the father on 29 March 2025 the child told the father he now enjoys school and is happy with his routine including after-school care which involves clubs, art and sports.
A letter from S School dated 9 May 2025 states that the child has been enrolled at the school since 6 February 2025. It is a short two paragraph letter which makes positive comments in relation to the child’s engagement with his schooling and having formed strong connections with several students in the class.
It is common ground that the parties had previously decided that the child should repeat kindergarten. The child had been one of the youngest kindergarten students at D School in 2024.
The child has now spent about 4 months of kindergarten schooling at S School. The mother had unilaterally enrolled the child in that school. Whereas there is a suggestion on the evidence before the Court that the child has had a positive introduction to the schooling environment at S School, the Court observes that the child had spent a full academic year in kindergarten at D School in 2024. And prior to 2024, the child had commenced pre-kindergarten at D School in 2023. The evidence before the Court suggests that the child enjoyed participating in a range of extracurricular activities in 2024 whilst attending D School . And further, the child had been living in the former matrimonial home at Suburb M (relatively close to D School ) since 2020.
Again, the Court observes that the Semester 2 school report in 2024 for the child at D School was a positive report for the child at that school. The father has indicated his willingness to pay the child’s school fees at D School. The child is 6 years old and in kindergarten. The Court has no significant concern that should the child be re-enrolled at D School that he will not adjust positively to that new kindergarten environment; the Court is of the view that there is a significant prospect that the child will indeed adjust positively into that new kindergarten environment. There is a significant suggestion on the material before the Court that prior to the mother leaving the former matrimonial home with the child in late December 2024 to live in a refuge, the child had had a stable and secure life attending the D School, attending extra-curricular activities whilst at that school, and living with his parents in the Suburb M family home.
Having regard to the above discussed matters, at this interim stage it will be in the best interests of the child to be forthwith re-enrolled at D School.
The father sought an interim restraining order that the parties be restrained from changing the child’s school enrolment from D School and E School, unless agreed in writing between them. Again, the mother had unilaterally removed the child from the D School . As to E School, the father had asserted in his affidavit filed 9 April 2025 that D School was affiliated with E School, and that the child was enrolled and accepted to commence at that latter school in Year 5 which the parties had both agreed to. The mother, in her affidavit filed 10 April 2025, in relation to E School, had merely stated that the child (with the Court again noting the child’s tender age) had told her on several occasions that he didn’t want to go to that school, albeit stating that she is aware that the child misses his friends from that school. It will be in the child’s best interests, at this interim stage, to make the father’s proposed interim restraining orders.
The father had sought interim orders, in the alternate, in his Minute of Order sent to the Court on 26 May 2025, that:
23. To facilitate these Orders;
23.1The Father shall pay the bond and rental of a lease of an apartment (or house) of the mother's choosing in the [Suburb G], [Suburb F], [Suburb H], [Suburb K], [Suburb J] area , or such other suburb as may be agreed between the parties in writing, for a period of 6 months in advance.
23.2The Mother shall forthwith select accommodation for herself and the child to live in, provided that the sum of the rental amount to be paid by the Father does not exceed $850 per week , and the Mother shall do all things and sign all document as may be required to complete an application to secure her chosen rental accommodation.
The Court notes that in paragraph 107 of the father’s affidavit filed 9 April 2025 he had stated:
107.If the Court orders [the child’s] return to [D School] I am willing to financially assist [the mother] with securing a rental property in an area convenient to [the child’s] school. I live off savings invested with CBA, and pending further order I can subsidise [the mother’s] rent up to $600 a week until we have the opportunity of mediating a financial settlement, as I believe this is the best outcome for [the child] than living in a refuge.
During oral submissions at the interim hearing, the father referred to the above paragraph 107 and then informed the Court that he would be prepared to pay up to $850 per week for 6 months and a bond. The father did not at the interim hearing seek an order that the mother cause the child’s residence to be relocated to a suburb relatively close to D School and that was not the subject of submissions by either party at the interim hearing.
Accordingly, it would not be proper for the Court to make any interim order to the effect that the mother cause the child’s residence to be relocated. The Court observes, having stated above that it will be in the best interests of the child to be forthwith re-enrolled at D School, that there is no evidence before the Court that a commute between the mother’s present residence (the address of which the mother did not disclose to the Court) and D School is not practicable.
Should the mother choose to presently live with the child by way of rental accommodation in a suburb nominated by the father in his Minute of Order emailed to the Court on 26 May 2025 (namely either Suburb F, Suburb G, Suburb H, Suburb J, Suburb K, or such other suburb as agreed between the parties) then the Court will order, in accordance with the father’s proposal, that the father subsidise her rent for six months up to $850 per week and pay the rental bond.
Changeover should occur at the child’s school at Suburb H on school days. On non-school days changeover should occur at the McDonald’s restaurant at Suburb C as proposed by the mother as it is presently unclear exactly where the mother will choose to reside with the child. Such locations for changeovers will minimise the risk of conflict at changeovers.
The Court considers that the orders it now proposes to make will not expose the mother to an unacceptable risk of family violence, noting contact between the parties is to be minimal and in public.
In view of the Court’s safety discussions relating to the child (and the mother), above, it will not be proper or appropriate to make any injunctive relief against the father under s 68B of the Act and otherwise sought by the mother. After the Court’s interim parenting orders are made, there is unlikely to be any major decision looming for the child’s care, welfare or development and accordingly it is premature, pending final hearing in relation to parenting, to make any order for parental responsibility.
At this interim stage, in view of the Court’s discussions above, including safety discussions relating to the child (and the mother), it will not be in the best interests of the child to make the mother’s proposed mental healthcare plan related orders in respect to the father nor to require him to participate in a Men’s Behaviour Change course or Parenting After Separation course. It will be in the best interests of the child to make the father’s proposed non-denigration restraining orders, and in this regard the Court refers to its safety discussions relating to the child (and the mother), above.
CONCLUSION
Evaluating the above discussed considerations under s 60CC of the Act, and other matters discussed above, the Court is of the view that it will be in the best interests of the child to make the following interim orders:
1.The child X born in 2019 (“the child”) will live with the Father:
(a)from 3.00 pm or after school Friday 6 June 2025 until 9.00 am or before school on Monday 9 June 2025;
(b)from 3.00 pm or after school Friday 20 June 2025 until 9.00 am or before school on Monday 23 June 2025.
2.Thereafter, the child will live with the Father:
(a)During school term in a two-week cycle as follows:
(i)Week 1: from 3.00 pm or after school Wednesday until 9.00 am or before school on Friday;
(ii)Week 2: from 3.00 pm or after school Friday until 9.00 am or before school on Monday.
(b)During school holidays as follows:
(i)For the first half of the school holidays in odd numbered years; and
(ii)For the second half of the school holidays in even numbered years.
(c)During special occasions despite any inconsistent provision herein as follows:
(i)From 12.00 noon Christmas Eve until 4.00 pm Christmas Day in even numbered years;
(ii)From 4.00 pm Christmas Day until Boxing Day at 5.00 pm in odd numbered years;
(iii)From 9.00 am 31 December until 12.00 noon 1 January in odd numbered years;
(iv)From 9.00 am to 6.00 pm on Father’s Day;
(v)If the child is not otherwise in his care, on the child’s birthday from 3.00 pm to 7.00 pm if it occurs on a school day and 9.00 am to 1.00 pm if it is a non-school day;
(vi)From 3.00 pm until 8.00 pm on the Father's birthday.
3.The child will live with the Mother:
(a)During school term at all other times he is not otherwise living with the Father;
(b)During school holidays as follows:
(i)For the first half of the school holidays in even numbered years; and
(ii)For the second half of the school holidays in odd numbered years.
(c)During special occasions as follows:
(i)From 12.00 noon Christmas Eve until 4.00 pm Christmas Day in odd numbered years;
(ii)From 4.00 pm Christmas Day until Boxing Day at 5.00 pm in even numbered years;
(iii)From 9.00 am 31 December until 12.00 noon 1 January in even numbered years;
(iv)From 9.00 am to 6.00 pm on Mother's Day;
(v)If the child is not otherwise in her care, on the child’s birthday from 3.00 pm to 7.00 pm if it occurs on a school day and 9.00 am to 1.00 pm if it is a non-school day.
(vi)From 3.00 pm until 8.00 pm on the Mother's birthday,
Changeover
4.On school days changeover shall occur at the child’s school. For the purpose of changeover on non-school days, the Mother and Father shall meet at the McDonalds Restaurant at B Street, Suburb C.
Schooling
5.The Mother and the Father will forthwith do all things and sign all documents as may be required to continue the child's education and attendance at D School, at the Father's expense.
6.The Mother and Father are restrained from changing the child's school enrolment from D School and E School, unless agreed in writing between them.
7.The Mother and the Father shall each be permitted to attend school events of the child to which parents are permitted to attend, including but not limited to assemblies, carnivals and concerts.
Information sharing
8.The Father shall notify the Mother at least four weeks prior of any intention to change his residential address, including details of the proposed change of residential address and details as to who will be living in the new residential address.
9.The Mother shall notify the Father at least four weeks prior of any intention to change her residential address, including details of the proposed change of residential address and details as to who will be living in the new residential address.
10.Each parent shall keep the other parent informed as to their current residential telephone number, mobile telephone number and email address and advise each other within two days of any such change.
11.Each parent shall make arrangements at the child's schools to ensure that they can obtain the following information and documents at their own cost:
(a)A copy of all school reports for the child;
(b)Notification for school activities that they may decide to attend;
(c)Notification of parent/teacher nights and the school is informed that it is both parent's desire to attend such events;
(d)In the event of the child being taken from the school or pre-school for an emergency, remedial or correctional treatment that both parents be informed as soon as practicable.
12.In the event of the child suffering a medical emergency requiring medical attention while in the care of either parent:
(a)The other parent is to be notified as soon as practicable;
(b)That the other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable;
(c)That the medical practitioner or medical facility be advised that the other parent has access to the child's medical records and the information obtained with them upon request.
Non-denigration
13.Pursuant to section 68B (1) of the Family Law Act 1975 (Cth), the Mother and Father be and hereby are restrained by injunction from:
(a)Abusing, denigrating, demeaning or belittling the other parent, their partner and/or members of their family in the presence of or hearing of the child;
(b)Allowing or permitting any other person to abuse, denigrate, demine or belittle the other parent, their partner and/or members of their family in the presence of or hearing of the child, where that parent is present;
(c)Discussing these proceedings with the child.
Inconsistency with Family Violence Order
14.For the purposes of section 68P(2)(a) of the Family Law Act 1975 (Act), clauses of this Order may be declared to be inconsistent with clauses 3B and 9C of the provisional Apprehended Domestic Violence Order dated early 2025 and pursuant to section 68Q(1) of the Act, the provisional Apprehended Domestic Violence Order is invalid to the extent of the inconsistency.
Mother’s rent
15.To facilitate these Orders, should the mother elect to rent accommodation for herself and the child in Suburb F, Suburb G, Suburb H, Suburb J, or Suburb K, or such other suburb as may be agreed between the parties in writing, then the father shall pay the bond and rent of up to $850 per week of a lease of an apartment (or house) of the mother's choosing in that suburb for a period of 6 months in advance.
Appointment of Independent Children’s Lawyer
16.Pursuant to Section 68L of the Family Law Act 1975 (Cth) the child X born in 2019 be independently represented and the Court requests that the Legal Aid Commission provide that representation.
17.The solicitors for the parties are to forward copies of all applications, responses, affidavits and any other relevant documents to Legal Aid NSW for the attention and use of the Independent Children’s Lawyer when appointed.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 3 June 2025
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