Gowad & Andreja [2025] FedCFamC1F 564 (19 August 2025)

(a) During the school term:

(i) From 6pm on Friday until noon on Sunday; and

(ii) At such further or other times as agreed between the parents in writing; and

(b) On Father's Day in 2025 from 9.00 am until the commencement of school and preschool the following day (or 9.00 am if a non-school and non-preschool day).

1. The mother may nominate one weekend in each school term on which time under order 4(a)(i) is suspended (not to include the weekend immediately after the making of these orders) provided she gives the father at least 14 days notice of the election.
2. For the purpose of the children spending time with the father pursuant to these orders:

(a) At the commencement of the father's time, the mother shall deliver the children to the father at a service station, H Street Suburb J;

(b) At the conclusion of the father's time, he shall deliver the children to the mother at D Parkland located on E Street, Suburb F in the state of New South Wales.

1. The parents forthwith do all acts and things to enrol X in the NSW Government school closest to the mother's home.
2. The parents forthwith do all acts and things to enrol Y in K child care centre located at L Street, Suburb M in the State of New South Wales or N child care centre located at O Street, Suburb M in the State of New South Wales or P child care centre located at Q Street, Suburb R in the State of New South Wales whichever has the earliest availability.
3. The Mother is restrained from relocating the primary residence of the children further than 5km from S Street, Suburb M in the State of New South Wales or from changing the children's school or daycare enrolments, without the father's consent.

1. Pursuant to Rules 7.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Dr B ("the Single Expert") is appointed as the Single Expert to enquire into and report upon issues relating to the welfare of X and Y.
2. The Single Expert's fees be shared equally between the father and the mother, with the mother meeting them in the first instance.
3. For the purposes of the Expert Report, the parties shall avail themselves of the first available appointment for interviews.
4. In the event that any of the parties request the attendance of the Single Expert at Court for the purposes of cross-examination, the parties shall be equally responsible for the Single Expert's costs in respect of such attendance.
5. The Single Expert shall prepare a report ("the Single Expert report") which addresses the following matters:

(a) any views expressed by the children and any matters (such as the children's maturity or level of understanding) that would affect the weight that the Court should place on those views;

(b) the matters set out in ss 60CC, 61D(3) and 61DAA of the Family Law Act 1975 (Cth);

(c) the impact upon the children and upon the children's relationship with the father if the Court makes orders as sought by the mother;

(d) the impact upon the children and upon the children's relationship with the mother if the Court makes orders as sought by father;

(e) any other matters that the Single Expert considers important to the welfare or best interests of the children.

1. Orders 14-20 of the mother's Minute of Order are adjourned to 26 August 2025 before Justice Schonell.

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).

1. This is an interim application for parenting orders in respect of the children X born 2019 (aged 6) and Y born 2021 (aged 4).
2. The applicant is the children's father and the respondent is the children's mother. Before me today, each has been ably represented by Counsel.
3. The parties' dispute comes before the court in circumstances where the Australian Central Authority made an application to the Country G Central Authority to seek orders in Country G for return of the children pursuant to the International Convention on the Civil Aspects of International Child Abduction ("The Hague Convention").
4. The Hague Convention proceedings finalised on 19 May 2025 and the appeal against the return order was dismissed on 22 July 2025.
5. The matter came before me on 13 August and on that day, I listed it for interim hearing on 19 August 2025 after having been told by the parties that they were ready to proceed. I also indicated that I would make arrangements for the parties to have access to urgent dispute resolution if possible. The court facilitated that dispute resolution, which took place on 18 August 2025, and resulted in the making of consent orders relating predominantly to allocation of time as between the parents during school holidays.
6. The parties separated in February 2021 according to the mother or in October 2022 according to the father. The discrepancy is not material to this interim decision.
7. The living arrangements prior to the mother taking the children to Country G were that the mother lived in Suburb T and the father lived in Suburb U.
8. The children have a half sibling who is the child of the father and his partner, and another sibling is due to be born to the father's partner in the next month.
9. The children have a half sibling who is the child of the mother and her partner.
10. There was a parenting plan, and the father says the children divided their time between the parents in accordance with the plan dated 7 July 2023. This saw them living with their mother and spending time with their father on weekdays and weekends. The parents do not agree about the extent to which they complied with this parenting plan.
11. On 23 July 2023 the mother filed an application for consent orders naming the father as the applicant and herself as the respondent. The father indicated in his affidavit material that he was not aware of the application for consent orders and says that the application was dismissed on 23 January 2024. The mother did not raise risk issues in the Notice of Risk filed 30 July 2023 (Exhibit 5).
12. There are, however, a number of risk issues which have now been identified by both parents as relevant to the welfare of the children.
13. In large part, I am unable to make findings where the parties are not in agreement and will rely on the more uncontroversial matters.
14. The mother contends that the father has historically drunk alcohol to excess and details assault and apprehended domestic violence order proceedings before the Local Court, which resulted in a conviction and a two-year order.
15. The father, for his part, contends that the mother has received prescription medication used to treat several mental health conditions and that he experienced the mother as aggressive.
16. From subpoenaed material, the father says there are further concerns arising out of two incidents. Exhibit 3 says that in late 2005 (when the mother was nineteen), police attended at 7.20 pm after a triple-0 call - the mother is listed as the informant who told the police that her parents were fighting with one of the parents threatening to stab the other. When police attended and spoke to all parties, the police record reads:

[A]scertaining that Victim [the mother], who is 19 years old had arrived home from work complaining of a bad day. The accused has responded to this speaking harshly to the Victim 2 [the mother]. When Victim 2 had left the room the Victim 1 [the maternal grandfather] questioned why she had to speak so harshly towards their daughter, which the accused has reacted badly slamming cupboard doors and...held the accused and attempted to subdue her, although while being held by Victim 1, the accused has spat in Victim 1's face also yelling, "I'm going to stab and kill you." Victim 1 has reacted by striking the accused with a slap across the face. At this point of time Victim 2 has contacted police.

While talking to Police the PINOP has mentioned that the accused has on other occasions made similar threats killing the Victim 1, though has always taken the comments as being said in the heat of the moment. For this reason, police have fears for the safety of Victim 1 and applied for a AVO on their behalf, as they were not willing to do so.

While Police were talking to Victim 1, Victim 2 has approached Police and asked to speak with them in private. While talking to Police Victim 2 stated that she is on medication for depression and is thinking about slitting her wrists because of the events that have taken place. Victim 2 also stated that she didn't know how to stop herself and asked for Police to help.

Police organised alternate accommodation for the accused, then transferred Victim 2 to [V] Hospital where she was scheduled under section 24 of the Mental Health Act and left in the hands of the Acute Care Team.

(Exhibit 3)

1. Exhibit 3 contains an incident which is objectively concerning. However, it is an incident that took place twenty years ago when the mother was 19 years of age; and as regards, the mother indicates that she appropriately asked for help in circumstances which she found difficult. I accept that the records indicate the mother had a vulnerability and sought help in difficult circumstances some time ago. However, given the maternal grandfather is not in the home and the parties resided with the maternal grandmother for a lengthy period well after 2005, and no issues are raised in the father's affidavit material (save and except the text messages to which I was referred, whereby the mother raised some issue in respect of leaving children in the sole care of her mother) these documents do not loom large in my consideration.
2. In late 2016, the police again attended upon the mother. The record (Exhibit 2) says:

Police attended the above location as the patient's ex-partner had contacted police stating that the patient had sent him a text message a short time earlier stating she had nothing left and from what she had left she would deal with tonight.

Police arrived at the location and were led to the patient's bedroom where she was sleeping by her father. The patient allowed police to enter bedroom where she stated she lost it and had had enough. Patient stated that she is having ongoing issues with her ex-partner as he is harassing her to the point where she cannot cope, current enforceable AVO in place

(Ex partner under investigation for breach AVO)

The patient told police that she sent the text message to her ex-partner as she had a really bad day, she was over everything and she feels like she is losing control. The patient stated to police that she was thinking about driving off a cliff or overdosing. she was over everything and she feels like she is losing control. Patient stated to police that she was thinking about driving off a Cliff overdosing.

The Patient informed police that she was concerned for her safety due to the way she was feeling. The Patient was conveyed to [V] Hospital via ambulance and placed under a section 22 for a mental health assessment.

(Exhibit 2)

1. Again, the record is objectively concerning but indicates a preparedness on the part of the mother - some nine years ago - to seek mental health assistance when she was experiencing vulnerability. I am not persuaded the material in this record elevates concern such that the children should be removed from the mother's care on an interim basis.
2. The material contained in Exhibit 4 is not an occasion unknown to the parties. The account in some sense confirms the case advanced by both parties. The father says it demonstrates the mother's psychological vulnerability. In the mother's case, she makes contemporaneous complaint about the father's excessive alcohol consumption and violence towards her.
3. While not entirely dispositive of the issue, I read the parties' consent to shared school holidays (subject to restraints) as being the manner in which each party says the issues of risk ought be addressed. Although I accept that the father did not have the subpoenaed material when he consented, he does not seek today to disturb those orders.
4. It follows that what I am being asked to do is to determine whether the children should live with the mother or the father during school term. In so doing, it remains relevant for me to independently consider whether the allegations each party makes are relevant to the children's living arrangements, and whether or not the restraints to which they have consented will ensure that the children are safe.
5. The father denies some of the mother's allegations but concedes the incident with which he was charged (as evidenced by his guilty plea).
6. The mother denies the father's allegations that she was aggressive.
7. In Eaby & Speelman [2015] FamCAFC 104; (2015) FLC 93-654, the Full Court observed:

[T]hat does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded and the case determined solely by reference to the agreed facts.

1. It is not possible, at an interim hearing, to ignore or put to one side serious allegations just because they have been put in issue. Until the evidence can be tested, it is necessary to appreciate the impact on the children if the allegations are subsequently found to be accurate (SS & AH [2010] FamCAFC 13 at [41] and [100]).
2. The Full Court has analysed the process of assessment of risk in the decision in Deiter & Deiter [2011] FamCAFC 82 at [61]:

Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.

1. This approach is confirmed by the Full Court in Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC 94-092.
2. As a consequence of the issues of risk identified by the material, more weight is to be given to the need to ensure the children are safe until the evidence can be tested.
3. In order to reach a conclusion as to what order or orders will be in the best interests of the subject children, it is necessary to consider the matters set out in sections 60CC of the Family Law Act 1975 (Cth) ("the Act").
4. An interim hearing is a curtailed exercise and the evidence of the parties is, as a general rule, untested. The effect of an abridged hearing means that it will not always be possible to make findings of fact in respect of all relevant contested issues.
5. Where the contested issues involve questions of risk, it is necessary to approach the making of orders cautiously, with a view to the alleged risk issues and the manner in which such risks can be addressed (if at all).
6. The matters which are raised in the mother's material which relate to the father's treatment of her, and to her conversation with the father's current partner, and allegations involving physical discipline of the parties' young children, are objectively concerning. If in due course the mother's allegations are established, then it may be that the children have been (and may be) exposed to family violence in the father's household. I take into account in that regard that the father does not deny the entirety of the mother's allegations.
7. The issue of the children's safety is not as squarely raised by the allegations which the father makes about the mother (and she denies). This issue may need to be the subject of expert evidence, particularly in light of the mother's own evidence that her employment is to be terminated on the basis that she is medically unfit, and in light of the exhibits (previously discussed) which demonstrate that the mother has experienced mental health vulnerability since at least her late teens. The mother's mental health vulnerabilities may or may not have consequences for assessment of parental capacity.
8. The evidence about the children's care arrangements establishes that they have been in the care of their mother for at least thirteen months, in circumstances where she removed them from Australia without the father's consent. These proceedings are not focused on punishment of the mother.
9. I accept the unilateral removal raises issue of trust for the father. The removal was wrongful, and the mother undoubtedly deceived the father in order to achieve her aim and continued to deceive him as to her actual location. However, the children must remain in Australia because of an airport watchlist order.
10. The father contended that the removal must have had a negative impact on the children. I agree that it is likely to have been experienced as confusing to the children and will have had a potentially detrimental impact on the nature of the relationship between the children and their father. This is likely the subject of expert evidence.
11. I am obliged to put to one side the interests of the adults and focus on what orders will be in the best interests of the subject children. In that regard, I am guided by the considerations in s60CC(2), in particular subparagraphs (c), (d), (e) and (f) of the Act.
12. On balance, considerations of safety and parental capacity raise questions about the father's proposal that he be primarily responsible for the children's care. I must consider that, from the children's perspective, given the children's ages, they have lived with their mother and spent minimal recent time with their father. The parties separated (on the mother's case) before the younger child was born; and the father's work arrangements in 2022, in any event, were such that the mother was primarily responsible for their care.
13. The mother says that the father did not exercise all of the time available to him under the parenting plan, and there is some level of agreement that between January and June 2024, the children were in the mother's care during the week and the father's care from Saturday to Monday morning.
14. I accept that the situation whereby the children have been in the mother's care is a consequence of her deception of the father, but I do not consider that the children should have their parenting arrangements determined by reference to their mother's "bad act".
15. Counsel for the father submitted that the mother's conduct spoke to the mother's attitude to parenting (an expression no longer found in the Act) and to her parenting capacity. I agree that the mother's evidence does not acknowledge the impact of her actions on the children's relationship with the father.
16. I accept that before the unilateral removal, the children were, as Counsel for the father submitted, in a well-settled arrangement. However, that situation was disturbed by the move such that I do not reach the view that the children's best interests require their return to a particularly geographical locale. This is particularly because of their young ages, but also because the children have known many homes in their short life (including multiple homes with their father).
17. The father submitted that the mother's attitude towards him over a number of years is such that the children will be best protected if they live with him. In due course, the evidence about this will be tested and it may be that if the father's evidence is accepted, then the mother may not be able to demonstrate that she can support the children's relationship if she is permitted to relocate.
18. At present, the scope of the dispute is much more narrow. I am told the parents are sharing the holidays. I am being asked to select which parent the children should live with during the week and which parent on the weekend. The father also proposes some mid-week time (which may not be practical given the parties living arrangements).
19. The mother is currently living with her mother in Suburb M. The father remains living in the vicinity of Suburb U. The distance between the parties' homes is about 110 kilometres or 1.5 hours drive. Given the children's ages and the driving distance, regular and frequent time is possible.
20. I accept this changes where the children live - but that is not, as Counsel for the father submitted, to a location without social capital - since the children will have significant access to the maternal grandmother, the mother, half sibling and in the short term, the mother's partner.
21. Ironically, the father asks that I should, in response to the disruptive conduct of the mother, again disrupt the children's care arrangements on an interim basis.
22. I propose to order more time for the children than the mother suggests but allow suspension on one occasion per term.

1. The major long-term issues which may arise for these children on an interim basis include:

(a) Education - it is appropriate given the parties' dispute that I make a specific order about education;

(b) Medical decisions of a more serious nature - but there is no evidence to suggest this is a present concern;

(c) Moves which may impact on time - but this is addressed by injunctions in this case;

(d) Name changes - but there is no evidence that raises this issue.

1. The father sought sole parental responsibility because of distrust and because the mother's unilateral decision was contrary to the best interests of the children (in so far as their relationship with the father was concerned). There is no evidence that the mother's judgment is generally poor when it comes to making decisions for the children. The key issue is her judgment about the children's relationship with the father.
2. The mother does not seek sole parental responsibility.
3. I do not propose to allocate parental responsibility but rather to address the issues which arise for these children by the making of specific issues orders and injunctions. Otherwise, each parent will continue to have that parental responsibility, which all parents have (absent court order).

1. The parents do not agree about enrolment in school or childcare for the children. The children should attend the school near the parent they are living with during the week. The mother seeks specific orders. The father opposes the primary school identified by the mother for X as an independent religiously affiliated school. There is no evidence by which I could conclude, given the dispute between the parents, that it is in the best interests of X to attend the school nominated by the mother. Given X's age, it is appropriate that X be enrolled in the NSW State Government school closest to her home.

1. The parents agree where the changeovers should take place but not the detail. The father says his work commitments are relevant to the changeover place. I accept it is appropriate that the mother deliver the children on a Friday afternoon. I accept this will be personally onerous given her commitments as the mother of an infant and the notorious traffic, but it is a consequence of the accommodation arrangements which she has elected and reflective of her greater availability. The father should return the children at the conclusion of his time.

1. The father seeks an order that 'the Mother and her husband [Mr C] when spending time with the children via WhatsApp communicate with the children in the English language'.
2. In support of the making of that injunction counsel for the father submitted that such an order was necessary having regard to two factors:

(a) In order to ascertain whether the mother was complying with injunctions made on 18 August 2025 by consent - Orders 11(a) - 11(c); and

(b) Because the children had been upset following a phone call.

1. Counsel for the mother says that the first of those bases is unsound, because it is inconsistent with the need to give children privacy during phone calls in Order 8(d). I agree.
2. In addition, I cannot make an order binding a third party.
3. I do not think it is in the interests of the children for me to make an order which would have the effect of limiting the children speaking Country G language given that is the native language of their step-father and a language which they have been speaking with him, one another, and one would anticipate with their new sibling. I decline to make the order.

I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie.