FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rushdie & Rushdie [2025] FedCFamC2F 213
File number(s): PAC 3482 of 2022 Judgment of: JUDGE NEWBRUN Date of judgment: 20 February 2025 Catchwords: FAMILY LAW – PARENTING – Application for the maternal grandmother to spend time with the child – best interests of the child – Orders made. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61D Cases cited: Aldridge & Keaton (2009) FLC 93-421
Oberlin & Infeld (2021) FamCAFC 66
Valentine & Lacerra and Anor [2013] FamCAFC 53
Division: Division 2 Family Law Number of paragraphs: 252 Date of hearing: 20 – 22 January 2025 Place: Parramatta Counsel for the Applicant: Mr Cataldi (Day 1 and 2)
In person (Day 2 and 3)Solicitor for the Applicant: John Stonham & Co Lawyers (Day 1 and 2) Solicitor for the First Respondent: Ms Hould of Richard Cummins Solicitor Solicitor for the Second Respondent: Mr Dib of Dib & Associates Counsel for the Independent Children's Lawyer: Mr Cairns Solicitor for the Independent Children's Lawyer: Johnson Vardanega Lawyers ORDERS
PAC 3482 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS RUSHDIE
Applicant
AND: MS C RUSHDIE
First Respondent
MR KINLEY
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
20 FEBRUARY 2025
BY CONSENT ON A FINAL BASIS THE COURT ORDERS THAT:
1.The parents shall have equal shared parental responsibility to make long-term decisions regarding the child, EE born 2021, and in the exercise of that authority, the following shall apply:
1.1Advise the other parent in writing of the decision they intend to make;
1.2Invite the other parent to provide a written response in relation to the proposed decision;
1.3Schedule a time to discuss the major long-term decision; and
1.4In the event the parents are unable to make a decision jointly, they must attend a mediation and each make a genuine attempt to reach an agreement.
2.The child shall live with the mother.
3.The child shall spend time with father as agreed between the parties, and in default of agreement, each alternate week from after school (or 3:00pm if a non-school day) on Friday until Sunday 6pm (or start of school Monday).
4.In the event that father is unable to spend time with the child, he is to provide the mother with as much notice as possible, and not less than seven (7) days, except in the case of an emergency.
5.Unless in the event of an emergency, if the father is unable to give the mother seven (7) days’ notice, he is to provide the mother with a suitable proposal for alternative arrangement.
6.When the child commences school in 2027, unless otherwise between the parents in writing:
6.1The child shall continue to spend time with the father in accordance with Order 3 therein during Term time;
6.2The child shall spend time with the father in the NSW school term holidays as follows:
6.2.1During Term 1, for the first three (3) nights, with…
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- Case
- [2025] FedCFamC2F 213
- Decision Date
CaseChat Overview and Summary
The court focused on the best interests of the child in making its decision. It noted the parents' intentions for the child to attend religious and private schools and considered the importance of maintaining a stable and consistent environment for the child. The court also examined the relationship between the child and the maternal grandmother and the potential benefits and risks of the grandmother spending time with the child. The court determined that the maternal grandmother would not be granted time with the child unless there was an agreement in writing between the mother, father, and maternal grandmother.
The court made orders regarding the child's living arrangements, time spent with each parent, and other parenting matters. The parents were granted equal shared parental responsibility for making long-term decisions regarding the child. The child was to live with the mother and spend time with the father according to a detailed schedule. The court also made orders regarding notice requirements, changeover arrangements, travel with the child, and communication between the parents. The court noted that the parents intended for the child to attend religious and private schools. The court concluded that the maternal grandmother would not be granted time with the child unless there was an agreement in writing between the mother, father, and maternal grandmother.
The court's final order was that the maternal grandmother would not be granted time with the child unless there was an agreement in writing between the mother, father, and maternal grandmother. The court made detailed orders regarding the child's living arrangements, time spent with each parent, and other parenting matters. The court considered the best interests of the child in making its decision and noted the parents' intentions for the child to attend religious and private schools. The form of the order is subject to review or variation as necessary.
Orders
Orders of the court
PAC 3482 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS RUSHDIE
Applicant
AND:
MS C RUSHDIE
First Respondent
MR KINLEY
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
20 FEBRUARY 2025
BY CONSENT ON A FINAL BASIS THE COURT ORDERS THAT:
1. The parents shall have equal shared parental responsibility to make long-term decisions regarding the child, EE born 2021, and in the exercise of that authority, the following shall apply:
1.1 Advise the other parent in writing of the decision they intend to make;
1.2 Invite the other parent to provide a written response in relation to the proposed decision;
1.3 Schedule a time to discuss the major long-term decision; and
1.4 In the event the parents are unable to make a decision jointly, they must attend a mediation and each make a genuine attempt to reach an agreement.
2. The child shall live with the mother.
3. The child shall spend time with father as agreed between the parties, and in default of agreement, each alternate week from after school (or 3:00pm if a non-school day) on Friday until Sunday 6pm (or start of school Monday).
4. In the event that father is unable to spend time with the child, he is to provide the mother with as much notice as possible, and not less than seven (7) days, except in the case of an emergency.
5. Unless in the event of an emergency, if the father is unable to give the mother seven (7) days’ notice, he is to provide the mother with a suitable proposal for alternative arrangement.
6. When the child commences school in 2027, unless otherwise between the parents in writing:
6.1 The child shall continue to spend time with the father in accordance with Order 3 therein during Term time;
6.2 The child shall spend time with the father in the NSW school term holidays as follows:
6.2.1 During Term 1, for the first three (3) nights, with such time to commence at the conclusion of school or otherwise at 5:00pm, and to conclude at 5:00pm on the third day through the holidays;
6.2.2 During Term 2, for four (4) nights, with such time to commence on the fourth day at 5:00pm until the eighth day at 5:00pm;
6.2.3 During Term 3, for five (5) nights, with such time to commence at the conclusion of school or otherwise at 5:00pm, and to conclude at 5:00pm on the fifth day of the school holidays.
6.3 The child shall spend time with the father in NSW school summer holidays as follows:
6.3.1 The first week with the mother and every alternate week thereafter, with changeover to occur on Saturday at 5pm;
6.3.2 The second week with the father and every alternate week thereafter, with changeover to occur on Saturday at 5pm.
7. From 2028 and continuing, the child shall spend time with the father as agreed between the parents in writing, and failing agreement as follows:
7.1 The child shall continue to spend time with the father in accordance with Order 3 herein during Term time;
7.2 The child shall spend time with the father in the NSW holidays as follows:
7.2.1 During the Term 1 school holidays and in even numbered years thereafter, for the first half of the holidays, with changeover to occur on the middle Saturday at 5pm; and in odd numbered years commencing 2029, for the second half of the holidays, from the middle Saturday at 5pm until the commencement of the child’s first school day of Term 2:
7.2.2 During Term 2 school holidays and in even numbered years thereafter, for the second half of the holidays, from the middle Saturday at 5pm until the commencement of the child’s first school day of Term 3; and in odd numbered years commencing 2029, for the first half of the holidays from the conclusion of the child’s school day until the middle Saturday at 5pm;
7.2.3 During the Term 3 school holidays and in even numbered years thereafter, for the first half of the holidays, with changeover to occur on the middle Saturday at 5pm; and in odd numbered years commencing 2029, for the second half of the holidays, from the middle Saturday at 5pm until the commencement of the child’s first school day of Term 2:
7.2.4 During the summer holidays, for the second half of the summer holidays and in even numbered years thereafter, from the middle Saturday at 5pm until the conclusion of the child’s new school year; and for the first half of the summer holidays commencing 2029 and in odd numbered years thereafter, from the conclusion of the child’s last school day of the year until the middle Saturday at 5pm.
8. In the event that the mother is unable to spend time with the child, she is to provide the father with as much notice as possible, and not less than seven (7) days, except in the case of an emergency.
8.1 Unless in the event of an emergency, if the mother is unable to give the father seven (7) days’ notice, she is to provide the father with a suitable proposal for alternative arrangement.
9. In the event the father is unable to care of the child due to the father being ill, he must provide the mother with notice as soon as reasonably practicable, and the father shall use his best endeavours to make alternate arrangements to any existing plans such that he can care for the child.
10. Changeover shall occur at a location as agreed between the parents, and in default of agreement:
10.1 On school days: the father (or his nominee) shall collect the child from school at the commencement of his time, and the father (or his nominee) shall return the child to the school at the end of his time.
10.2 Non-school days: Changeover shall occur at the child’s residence.
11. In the event of exceptional circumstances, where the father is unable to facilitate changeover in accordance with Order 8 above, the father (or his nominee) will collect the child from the changeover location and/or bring the child to the pre-arranged location, and for this purpose the father is to provide the mother with as much notice as reasonably practical.
12. Both parents are permitted to travel with the children outside the Australia by consent and in writing subject to the following conditions, unless otherwise agreed:
12.1 The parent proposing the travel (“the travelling parent”) must provide the other parent (“the non-travelling parent”) not less than two (2) months in advance of the proposed travel, unless in the event of an immediate family illness/funeral/other emergency whereby 3 days’ notice will suffice, with:
12.1.1 A copy of the proposed itinerary, including proposed dates of departure and return;
12.1.2 Details of all proposed accommodation arrangements whilst overseas;
12.1.3 Contact details for the children whilst overseas.
12.2 Such travel is only to be to countries that are a signatory to the Hague Convention.
13. For the purposes of the child’s travelling documents:
13.1 Both parents shall do all things to ensure that the children hold a valid and Australian passport, and for this purpose:
13.1.1 The mother will provide the father with a completed application for an Australian passport within seven (7) days from acquiring an application to renew the passport.
13.1.2 The father is to return the signed application to the mother within seven (7) days of receipt.
13.2 The mother shall hold the child’s passport.
13.3 Both parents must sign any passport renewal applications as needed.
14. The travelling parent shall ensure that the children are available to have telephone communication with the non-travelling parent no less than three (3) times each week that the children is travelling, with the non-travelling parent to propose in writing a time and date for the telephone communication to occur.
15. In accordance with order 13 above, in the event that the father is the travelling parent, the mother shall provide the child’s passport to the father no fewer than seven (7) days prior to the intended travel, and the father shall return the children’s passport to the mother within seven (7) days of return.
16. In the event that one parent is unable to care for the children pursuant to this parenting plan for a period of more than four (4) hours, the other parent shall be given first option of care.
17. Both parents shall immediately notify the other by text message as soon as practicable if the children are seriously ill or admitted into hospital.
18. Both parents are permitted to receive from the children’s school/s any reports, notifications, photographs and invitations, and both parents are permitted to attend any school event or function to which parents are normally permitted to attend, including but not limited to parent/teacher interviews, parent days, assemblies, concerts and the like.
19. Both parents are entitled to attend events involving the children’s sporting and/or extra-curricular activities, fixtures, recitals and performances.
20. Each parent shall communicate with the other parent’s family members in a respectful manner.
21. The parents shall have children focused communications.
22. That should either parent choose to change residential address that they inform the other parent the intended address with as much notice as reasonably practicable, prior to the proposed change in writing.
23. The parents will keep each other informed of their email addresses and mobile numbers and notify the other parent of any change to those details within forty-eight (48) hours of such change occurring.
24. Each parent is restrained from:
24.1 Denigrating the other parent, or allowing any member of their family to denigrate the other parent or member of the other parent’s family or household to, or in the presence or hearing of, the children;
24.2 Physically disciplining the children;
24.3 Exposing the children to the conflict between the parties;
24.4 Exposing the children to family or domestic violence.
AND THE COURT NOTES THAT:
A. It is the parents’ intentions for EE to attend a religious primary school and a private high school.
B. If the parents are unable to reach an agreement pursuant to Order 1 herein, the parties shall attend mediation for the purposes of resolving any dispute.
AND ON A FINAL BASIS THE COURT ORDERS THAT:
25. Failing agreement in writing between the mother, the father, and the maternal grandmother, the child spend no time with the maternal grandmother.
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.
Background
Background to the litigation
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Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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