Rotaru & Rotaru [2025] FedCFamC2F 1491 (25 September 2025)

(a) from 10am until 7pm on Tuesday 23 September 2025.

(b) from 10am until 7pm on Wednesday 24 September 2025.

(c) from 10am on Friday 26 September 2025 until 7pm on Saturday 27 September 2025.

(d) from 10am on Friday 3 October 2025 until 5pm on Sunday 5 October 2025.

(e) From the beginning of term 4, 2025:

(i) In week 1, from the conclusion of school on Wednesday (or 3pm if not a school day) until the commencement of school on Thursday (or 9am if not a school day) commencing on 8 October 2025 and each alternate week thereafter

(ii) In week 2:

1. from the conclusion of school on Wednesday (or 3pm if not a school day) until 8pm, commencing 15 October 2025 and each alternate week thereafter, with such time to be extended from the week commencing 17 November 2025, to conclude at the commencement of school on Thursday or 9am if Thursday is not a school day; and
2. from the conclusion of school on Friday (or 3pm if not a school day) until 6pm on Sunday commencing on 17 October 2025 and each alternate week thereafter, with such time to be extended from the week commencing 24 November 2025 to conclude at the commencement of school on Monday or 9am if Monday is not a school day.

(f) At such other times that may be agreed between the parties.

During the summer school holidays the children live with the parties each fortnight as follows:

(a) With Ms Rotaru:

(i) for the balance of the time that the children are not living with Mr Rotaru as provided hereafter and the parties solicitors are directed to confer and bring in a minute as to precise times.

(b) With Mr Rotaru:

(i) from 5pm on 12 December 2025 until 5pm on 17 December 2025;

(ii) from 10am until 5pm on 25 December 2025 (Christmas Day);

(iii) from 5pm on 26 December 2025 until 5pm on 1 January 2026.

(iv) from 5pm on 9 January 2026 until 5pm on 16 January 2026; and

(v) from 5pm on 23 January 2026 until 12pm on the day before the commencement of Term 1, 2026.

During the school term holidays in term 1, term 2 and term 3, for half the holidays as agreed between the parties in writing from time to time and in default of agreement as follows:

(a) in odd numbered years, Ms Rotaru have the first half, commencing from the conclusion of school on the last day of the relevant school term;

(b) in even numbered years, Mr Rotaru have the first half, commencing from the conclusion of school on the last day of the relevant school term;

(c) changeover occur at 5.00pm on the middle day of the term holiday period and where there is an even number of days, the second middle day; and

(d) at the conclusion of the holiday period, the usual term arrangements recommence as if the holidays did not intervene.

• For the purpose of changeover, where changeover does not occur at the children's school, changeover take place at the home of the party whose time with the children is concluding, with the children to be collected from that party's home by the party whose time is commencing.
• Each party forthwith notify the other and keep the other informed of any significant medical issues or injury affecting either child, including medical appointments and any recommended treatment and medication to be taken by the children or either of them, and both parties be and are hereby authorised to speak with the children's treating medical or health professionals, attend any medical, specialist or health care appointments or hospitalisations, and obtain all medical and dental reports regarding the children from any hospital, medical, dental or other health professional attended by the children or either of them.
• Each party:

(a) advise and keep the other advised of any change to their residential address, phone numbers and email addresses;

(b) follow all reasonable recommendations of the children's treating medical or health professionals as to the children's treatment and/or medication administration;

(c) be at liberty to:

(i) attend sporting, extra-curricular activities, school functions, parent-teacher interviews, special events, concerts, and like occasions, ordinarily attended by parents at the children's schools, sporting clubs or other activities irrespective of in whose care the children are then residing;

(ii) receive all documents normally sent to parents of children at the children's schools, including notices, reports, newsletters, photograph order forms, and the like; and

(iii) communicate with persons who work at the children's schools and extracurricular activities.

(a) taking the children, or any of them, to any consultation or therapy session with a psychologist or counsellor without the prior, written consent, of the other parent, save for any existing professionals upon whom the children attend;

(b) discussing family law or family violence proceedings with, or in the presence or hearing of, the children or any of them or from allowing or abiding another person to engage in such conduct;

(c) discussing the alleged disclosures or the respondent's alleged inappropriate conduct towards Z with any of the children, including Z, or in their presence or hearing or from allowing another to engage in such conduct.

• Each party enrol in and complete the Tuning into Teens/Kids parenting program and Parenting After Separation and provide the other party with a certificate of completion for each program within 7 days of their completion of same.
• The parties facilitate the children making a telephone or video call to the other party at any reasonable time the children express a wish to do so and at the reasonable request of the other party.
• The parties do all acts and things that may be required to jointly authorise Taussig Cherrie Fildes to deliver the children's passports to Lander & Rogers Lawyers to be held by them pending further court order or written agreement between the parties.

• The parties forthwith do all acts and things that may be required to jointly appoint Ms C as family therapist, for the purpose of the parents engaging in non-reportable family therapy/parental relationship therapy and for this purpose:

(a) Ms C be engaged to assist the parents with the implementation of these orders and to address any other issues or concerns of the parents;

(b) Ms C's costs be paid by Mr Rotaru in the first instance, with Ms Rotaru's half share adjusted on interim or final property settlement subject to the determination at final hearing;

(c) the parties follow all reasonable recommendations of Ms C incidental to the therapy, including but not limited to attending appointments, or facilitating the children's attendance at appointments as and when directed;

(d) the parents ensure that the children, or any of them, attend for appointments in family therapy to the extent advised by Ms C; and

(e) the Independent Children's Lawyer be at liberty to provide Ms C with a copy of the Family Report and Risk Assessments prepared by Dr B together with the parties' most recent parenting affidavits and the s67ZBD Report as background and context for the therapy but not as concluded or determined facts.

• The parents do all acts and things to apply for and obtain further borrowings secured on the matrimonial home in the sum of $65,000, plus any necessary borrowing expenses, plus an amount calculated to cover any further necessary periodic or interest payments on such sum with such instalments to be paid in advance, with $65,000 to be made available to Ms Rotaru on the basis that that is lump sum spousal maintenance available for her support over the next 12 months (and in addition to child support assessment), and;

(a) until such sum is available to Ms Rotaru, the existing arrangements continue as far as practical; and

(b) when such sum is available, Ms Rotaru not otherwise draw on the credit card as is the current practice.

• From the funds to be received and controlled by Mr Rotaru and his entities on 24 June 2026, Ms Rotaru be paid as soon as practicable after those funds are made, the sum of $150,000 on account of a part property settlement.
• All applications for part property settlement and litigation funding be and are otherwise dismissed.

• The mention before Senior Judicial Registrar Crocker on 6 October 2025 be and is vacated.

1. It is intended that the usual fortnightly term regime is to re-commence on 30 January 2026, with the children to spend the first weekend (30 January - 1 February 2026) with Ms Rotaru.
2. Mr Rotaru undertakes that the children do not have Country D passports.

1. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

1. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
2. Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.
3. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
4. If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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. These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations, passages of authorities and evidence, to add observations inadvertently omitted due to the pressure of time and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.

1. By reason of the orders of 28 July 2025, the matter of Rotaru came before me as one of the three[1] matters in an interim hearing list. The dispute was as to interim parenting orders, including orders seeking a course of family therapy as well as litigation funding, seeking a part property settlement and periodic spousal maintenance. The matter came before me on Friday, 19 September 2025. Unfortunately, on that day, being a usual interim hearing day, there are a number of other matters listed. The matter was only able to be reached later in the afternoon, and I heard a helpful introductory position put by the Independent Children's Lawyer ('ICL'), and then each of the parties' counsel told me that they wish to address me, given the number of matters and the complexity of it, for likely an hour or more each.
2. There simply wasn't that time available, and so I took some short time hearing from counsel for the applicant wife, Ms Rotaru ('Ms Rotaru') and counsel for the respondent husband, Mr Rotaru ('Mr Rotaru') as to what the issues in dispute were.

1. Ms Rotaru is aged 53, and her occupation is as a professional. Mr Rotaru, is aged 55, and he is self-employed in finance. An ICL has been appointed for the parties' children.
2. The children of the relationship are X ('X'), aged 14 and in year 8 at a private school, Y ('Y'), aged 13, in year 7 at a private school, and Z ('Z'), aged 7, in grade 1 at a local school. The parties commenced cohabitation in 2010. X was born the year after, Y the year after that, and then, after a further five years or so, Z was born. It appears the parties' relationship of de facto marriage came to an end in about January 2024, and the parties continued to reside under the one roof, however, Mr Rotaru moved out in May 2025. These proceedings were issued on 24 June 2025.

1. Other matters that are relevant and figure significantly in these proceedings and that agitate the parties are the circumstances as partly described in Ms Rotaru's affidavit at paragraphs 17 to 24 regarding disclosures made to her by Z. They include:
   1. On Monday, 17 March 2025, at approximately 6:00pm, I was sitting at our kitchen table doing homework with [Z]...

...

1. This prompted me to initiate a "body safety" conversation. I said to [Z], "You know, [Z], no one is ever allowed to touch your private parts. It's Mum's job to talk to you about this."

2. [Z] responded by laughing awkwardly. He became very shy and started acting strangely. I asked "What are you laughing at, [Z]", [Z] then said, "Except Daddy, Daddy puts his hands down my pants and rubs my pipi. It feels good."

...

1. On the morning of Tuesday, 18 March 2025, I telephoned 1800 RESPECT to seek guidance on [Z]'s disclosure. The person I spoke to was concerned and they must have notified SOCIT, unbeknownst to me at the time.
2. On 19 March 2025, I received a phone call from SOCIT. The officer informed me that he was a plain-clothed detective and that he would be attending [Z]'s school to conduct an interview with [Z] that morning. I did not phone SOCIT. Once he interviewed, he phoned me to tell me that [Z] did not make any disclosures...
3. On 25 March 2025 at 8:53pm, I recorded a 3-minute and 41-second conversation with [Z] at bedtime regarding when [Mr Rotaru]'s behaviour occurred. During the conversation, [Z] stated that the incidents happened in various locations, but most frequently on the couch while watching television, particularly when everyone else had gone to bed or when he was alone with his dad... I provided the recording to SOCIT.

1. Those circumstances must have added to it the circumstances reported in the section 67ZBD report from child protection dated 15 September 2025 and in evidence as exhibit C2.
2. Whatever Z said on that day caused distress to Ms Rotaru. and I accept that, the following day, Ms Rotaru called the 1800RESPECT number, and she makes a point that she chose not to call the police or SOCIT, but rather, the 1800 number.
3. Unsurprisingly, after Ms Rotaru forwarded the recording to SOCIT (of the second alleged conversation on 25 March 2025), SOCIT again interviewed Z on or about 22 April 2025. In regard to this incident and after listening to the recording provided by Ms Rotaru, SOCIT determined that:

(1) Z was asked leading questions and that (Ms Rotaru) manipulated the conversation with him.

(2) No further action was taken by SOCIT or the Department of Families, Fairness and Housing ('Child Protection') and that Child Protection closed the report or investigation at the intake phase without progressing to investigation.

1. The end result of that is that it appears, based on Ms Rotaru's assertions to the court, that she retains a fear or a concern that Z may have been somehow sexually interfered with or is at risk of being sexually interfered with by Mr Rotaru in the future.
2. It is also of note that, although under the one roof in very unhappy circumstances, those allegations were not raised with Mr Rotaru at that time and that he learnt of them in the Court proceedings.
3. Ms Rotaru's distress from how she interpreted what she understands Z said[2] can be readily understood. Doing the best I can, it appears that Ms Rotaru continues to experience distress from what she understands Z has said to her.
4. The distress to Mr Rotaru of learning of such allegations in affidavit material in these proceedings can also be readily understood.

1. Also in this case, there are allegations of family violence or at least inappropriate behaviour and allegations of Mr Rotaru's inappropriate or excessive alcohol consumption. Whether or not the parents of the children had a very poor and conflictual relationship before those allegations were aired between them, it is clear that they now have a significantly poor parental relationship.

1. The other important background to the dispute is that the parties now live reasonably close together, and Ms Rotaru remains in the former matrimonial home ('FMH') with the expense of that home paid by Mr Rotaru from funds available to him. It may be that those funds available to him are what would ordinarily be regarded as joint funds at a final property hearing.
2. The area where the parents live can be regarded as an established or affluent inner-city area. The common ground (or at least if not completely common ground sufficiently so for the purposes of this hearing) description of the parties' assets and liabilities is as contained in annexure MRR-3 to Mr Rotaru's affidavit of 23 July 2025.
3. Since that affidavit was sworn,[3] a single expert valuation of the former matrimonial home has become available to the parties, which opines that the FMH has a market value of $3,325,000 rather than $3,100,000 as described in the annexure MRR-3. That table is as follows:

Interest in Mr Rotaru Family Trust / Mr Rotaru Trust

Rotaru Investments Pty Ltd ATF Mr Rotaru Family Trust

Secured loans made on secondary private loan market

Undrawn beneficiary entitlements owing to Mr Rotaru Trust

1. However, that annexure also describes funds at bank of $245,000 as at 22 July 2025, and it is asserted that, of those funds, there only remains some $119,000. Hence, on one view, the pool is little bit more than what is represented in table MRR3, but then there is a roughly corresponding reduction in terms of reduced funds at bank.
2. The case proceeded on the basis that the trustee companies of family trusts were effectively the property of the parties and controlled by Mr Rotaru and effectively his alter ego.

1. By the sensible and helpful negotiation of experienced counsel, together with an experienced ICL who appeared on her own behalf when the matter commenced on 19 September 2025 and when the matter resumed before me on 24 September, I was provided with a marked up common table of interim parenting orders (exhibit 'C1') where the differences between the parties were marked. The items in black were agreed between the parents and, I infer, the ICL, and those marked in red were Mr Rotaru's position, and those marked in blue were Ms Rotaru's position.
2. I am indebted to counsel and solicitors for going to the trouble of providing that document as it simply saves hours of work in trying to prepare for a judgment. Because of how difficult it is to have to listen to oral reasons without knowing the result and the anxiety that I infer each parent would be suffering while they listen to these reasons, I propose to announce or pronounce the parenting orders that I intend to make based on document C1.
3. At this point in the oral reasons I proceeded to discuss in detail the differences between the parties positions and indicate the substance of the orders that I would make. That discussion is contained in Appendix 1 to these reasons.

1. I acknowledge that on an interim hearing, I am bound by the principles of operation of the Act as previously outlined in the decision of Goode & Goode (2006) FLC 93-286 ('Goode & Goode'), but with references to legislation now changed to refer to the current scheme of legislation under Part VII of the Act as it now is.

[81] In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.

[82] In an interim case that would involve the following:

(a) identifying the competing proposals of the parties;

(b) identifying the issues in dispute in the interim hearing;

(c) identifying any agreed or uncontested relevant facts;

(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

1. The scheme of considering matters on an interim hearing include that the Court should be circumspect about making factual findings of disputed matters merely on the papers and without a full examination such as occurs at a final hearing which has the advantage of cross-examination.
2. But here, this is not a case of a first return or where there is little "helpful evidence". There is an abundance of helpful evidence, albeit some of it remains controversial. In this case, I have what purports to be a family report and risk analysis by a Dr B. Further, I have the information provided in the section 67ZBD report from Child Protection, and I have substantial and detailed affidavits from the parties.
3. I acknowledge that Ms Rotaru does not accept the opinion and observations, at least, in part, of Dr B. I further acknowledge that on this interim hearing, Ms Rotaru has not had the opportunity to test that evidence by cross-examination of Mr B, including cross-examination of Mr Rotaru. That testing can only be properly done at a final hearing.
4. The circumstance that evidence is controversial or contradicted and serious allegations are not admitted or are denied does not relieve me as the Court from following the pathway, or what is described as the pathway in Goode & Goode, which includes following the applicable legislation. That does not relieve me from the burden of making determinations about risk of harm to the children and/or their parents, notwithstanding that I must be circumspect about making factual findings.
5. The general guidance of SS & AH [2010] FamCAFC 13 ('SS & AH') as approved in Eaby & Speelman [2015] FamCAFC 104; (2015) FLC 93-654 ('Eaby & Speelman')at [18] & [19] apply in this case:
   1. Her Honour early in her reasons referred to Goode & Goode for guidance as to the correct approach to the determination of interim parenting proceedings. It is true that in Goode & Goode, at [68], the Full Court said that the circumscribed nature of interim hearings means that the court should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. However, that 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. Rather, the proper approach to contentious matters of fact in the determination of interim hearings is as explained in Marvel v Marvel, at [122] and [123], as follows:

[122] In SS v AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

[88] In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge's intuition may suggest that the finding will be borne out after a full testing of the evidence.

[123] Later, at [100] their Honours amplified their comments and said:

[100] The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

1. As would be immediately apparent, this approach enables the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.

1. Eaby & Speelman concluded that although I should be very cautious about making any factual findings, that does not mean that, merely because the facts are in dispute, the evidence on a topic must be disregarded, and the case determined solely by reference to the agreed facts. This is a case that could be described as falling fairly and squarely in that category in regard to the issue of whether or not there is any or any significant risk of harm or potential harm to Z from the allegations arising from March of this year.
2. The same applies to the observations and recommendations of Dr B. It is clear enough that Ms Rotaru does not accept Dr B's report and, I infer, intends to challenge that at final hearing; however, that does not mean that I can disregard Dr B's findings merely because Ms Rotaru does not accept the conclusions.
3. I refer to and repeat the guidance in the first instance judgment of Benson & Jeffreys [2024] FedCFamC1F 709 where Smith J opined:
   1. Although the Act and so the specific pathway has changed, the general principles guiding interim decision-making remain substantially the same. I note what was said in Goode & Goode [2006] FamCA 1346, in particular, at [81]-[82], and as I've said, noting that the particular pathway has changed, but the principles which indicate the Court must be careful in dealing with untested evidence but, nevertheless, must do the best it can, remain the same. See also Marvel & Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348 at [120].

35 I note that I am required to make a risk assessment, see SS v AH [2010] FamCAFC 13 in particular, at [88] and [100], and also see what was said in Eaby & Speelman (2015) FLC 93 654 at [18] in particular, where the Full Court said of the difficulty faced by judges in dealing with interims in which there are competing allegations, limited common ground and the material is limited by reason of the fact that it is an interim hearing and there has been no opportunity to test the evidence, in effect, that the Court cannot make findings of fact and should be very cautious, as the authorities I have just quoted say, in the weight to be given.

(footnotes omitted)

1. I also am guided by the decision of Huisman & Simonds [2025] FedCFamC1F 489 and Hidaka & Hidaka (No 3) [2025] FedCFamC1F 516 as authorities for the proposition that the combined effect of Goode & Goode and Ebey & Spielman remain the appropriate and applicable pathway in determining an interim parenting decision after the amendments to the Family Law Act 1975 (Cth) ('the Act') in 2024.

1. I turn now to the Family Report of Dr B. Ms Rotaru does not accept the recommendations of Dr B's report.
2. It is necessary that I recite key paragraphs of that report, they are as follows:
   1. [Ms Rotaru] stopped working when the children were born. She reportedly has begun study in October 2023 in [the arts] and is beginning to work in that area. She aims to work in her own business [...], etc, although she may need to do some other similar work to previously.

...

1. The relationship ended, from her account, for the following reasons:

   • [Mr Rotaru]'s use of alcohol, particularly binge drinking, and subsequent personality change when he drank.

   • Concern that the children were being exposed to the alcohol.

...

1. [Ms Rotaru] reported that she had a version of nervous breakdown in that time period, and that the younger two children wanted to sleep with her. She was scared of [Mr Rotaru] and verbal abuse, in particular.

...

1. The relationship ended with [Mr Rotaru]'s concerns related to sexual abuse issues concerning [Z].

...

1. [Ms Rotaru] described no sexualised behaviour, although indicated that the boys would play games and pull each other's pants down. She asked the older two children whether they felt safe with others and [Mr Rotaru], and both reported that they did so.

2. [Ms Rotaru]'s account is that the children love their father and look up to him, but she reported that [Y] finds [Mr Rotaru] annoying. [X] in particular spends a lot of time with his father, due to [X]'s involvement in soccer.

3. [Ms Rotaru] did not identify concerns about [Mr Rotaru] having a sexual orientation to the children.

4. [Z] has been meeting with a counsellor, [Ms M], and [Z] has been indicating that he has been missing his father.

...

1. [Ms Rotaru] spoke of a lack of trust, with financial difficulties where [Mr Rotaru] does not provide sufficient money.

...

1. [Ms Rotaru] has seen two psychologists for [Z]. Both contexts appear to have been related to sexual abuse concerns, and appear to have a focus on disclosure. She has also had referral to another psychologist in [Suburb N] who does play therapy, with a possibility of [Z] attending that counselling.

2. [Mr Rotaru] has not wanted [Z] to be taken to therapy and this matter has been addressed in family court.

...

1. [Ms Rotaru]'s description is that she has grieved for the last three years. While this appears to be the case, this grief appears to have also transformed into a lack of trust in [Mr Rotaru], and difficulty separating the children's need for a relationship with [Mr Rotaru] and her own grief, lack of trust and fear.

...

1. The PDS shows an elevation in Self Deceptive Enhancement and Impression Management.

2. The profile points to a repressor pattern, where individuals who have elevations on both subscales tend to be restrained and well-socialised, but when they have problems, lack the insight to deal with them and appear rigid.

3. It is likely these individuals are also negative and judgemental about others' difficulties and have a trait-like style towards self-enhancement, as well as a tendency to be influenced by situational demands.

...

1. [X] wants his parents to be able to talk and communicate and he indicated that sometimes at home, his mother says something about his father, suggesting denigration, saying things such as, "You don't know what he's done. I bet he's hiding money."

2. [X] would prefer that there is no badmouthing of his father. He acknowledged that his father also gets annoyed with his mother.

...

1. Nevertheless, [Y] described co-sleeping, indicating that she shares the bed with her mother and [Z]. She indicated that she has slept in her own bed. She indicated that, "Mum likes the kids with her," and she feels that it is possible that, if she did not sleep in the bed with her mother, her mother would miss her. She indicated that she does not sleep in the same bed, and has not done so, with her father, but also indicated that her parents had not slept together much previously.

2. As indicated, [Y] reported that she is torn between her parents to some degree, on occasions. She also indicated that there is denigration between her parents, and she reported defending the other parent at those times.

...

1. [Y] acknowledged that she would worry that her mother was missing them if she spent overnights with her father. She felt that her mother would be sad if she spent more than one night at her father's, but later indicated that she feels that her mother would be okay.

2. Nevertheless, [Y] reported that if she goes to camp, her mother says, "I missed you so much," but then feels that spending time with her father would not affect her mother. She acknowledged that she would feel guilty if she had time with her father to a greater degree.

...

1. Nevertheless, [Z] spoke of home being positive with his mother. They go places, she takes him to school and plays.

2. In discussion of these matters, [Z] volunteered that he wanted to have sleepovers with his father.

3. [Z] was able to identify, to some degree, what time arrangements occurred currently, indicating that he sees his father on a regular basis but does not sleep over. He reportedly was not happy with the current arrangement and indicated that he wanted to have one week with his mother and one with his father. He told his mother that is what he wanted, but he has not told his father.

4. When he is not with the other parent, [Z] misses the other parent "5/10", indicating that although he misses the other parent, it is not "too bad".

5. On a visual representation of his emotional life when he is with his mother and father, he reported that he is very happy when he is with either his mother and his father. When he is cared for by [Y] and [X], he is slightly less happy, with a similar rating for both siblings, and also a babysitter.

...

1. [Y] wants to bring her friends over, and the boys want overnight time.

2. [Mr Rotaru] spoke of the difficulties associated with both [Z] and [Y] sleeping in [Ms Rotaru]'s bed. He reported that [Y] has spent only the last two to three years in the mother's bed, whereas [Z] has slept with [Ms Rotaru] over the last seven years.

3. [Mr Rotaru]'s account is that [Ms Rotaru] means the best for the children, but he feels that [Z] has not been given a chance to grow up, and he described difficulties with boundaries.

4. [Mr Rotaru] described the children individually, reporting that all of the children are going well from an academic point of view and behaviourally. All three are social and generally their relationships are positive, although there is inevitable sibling rivalry and difficulties at times.

5. The issues associated with [Y] not wanting to spend time appears to be connected to her bonding with [Ms Rotaru] and effectively, from his perspective, her being caught between the parents, and her taking sides.

...

1. [Mr Rotaru] presented with no emotional or behavioural problem based on observation alone. The interviews showed him as low-key in his presentation. He presented as a person who is methodical and organised.

...

1. [Mr Rotaru] denied outright [Ms Rotaru]'s allegation.

2. [Mr Rotaru]'s description is that [Z] has slept with [Ms Rotaru] throughout his life and he has never left the marital bed, and since [Z]'s birth, [Y] has also been in the marital bed.

3. [Mr Rotaru]'s account is that [Ms Rotaru] trusted him, during the relationship, with [Z]. Before separation he asked [Z] about body safety issues and asked him directly if anyone had touched him inappropriately, including his mother and father, and he stated that his father would wipe his bottom and help him in the shower if he needed.

4. [Mr Rotaru]'s account is that in the affidavit, at least half of the allegations are not true. He acknowledged that on occasions, [Z] would do "the bum dance", and once or twice showed others his erection when he was a younger child.

5. The evaluation identified no significant clinical disorder and no personality disorder, based on this evaluation.

...

1. Psychological Adjustment is non-problematic, Mental Disorder is non-problematic, Social Adjustment is non-problematic and Manageability is non-problematic.

2. In summary and conclusion, based on the RSVP 22 factors, it is not possible to rate risk factors that identify risk of sexual violence beyond low risk.

...

1. In conclusion, the SARA found that all the factors identified must be coded as Absent, as there are no identifiable, objective factors that relate to risk for spousal violence.

...

Parenting Disputes:

• [Mr Rotaru] claims he was closely involved in the children's care before separation, while [Ms Rotaru] asserts she was the primary caregiver.
• [Ms Rotaru] has raised concerns about [Mr Rotaru]'s alleged inappropriate behaviour toward [Z], including disclosures of a sexual nature, which he denies.
• [Ms Rotaru] has restricted [Z]'s time with [Mr Rotaru] and insists that [Z] must always be accompanied by his siblings during visits.

• Proposed Parenting Arrangements:
  • [Mr Rotaru] proposed interim arrangements for the children to spend time with him, including overnight stays, which [Ms Rotaru] rejected.
  • [Ms Rotaru] proposed limited daytime visits for [Mr Rotaru] with the children, citing concerns about [Z]'s safety and the need for professional assessments.

Professional Assessments:

• [Ms Rotaru] has requested family reports and risk assessments to address parenting concerns, suggesting experts like [Dr O] and [Dr P].

• [Mr Rotaru] proposed [Dr B] as the single expert, citing his expertise, but [Ms Rotaru] opposed this.

Psychological Support for [Z]:

• [Ms Rotaru] proposed [Z] attend therapy sessions and a child safety program, which [Mr Rotaru] has not agreed to, pending recommendations from a family report writer or school counsellor

Current Time Arrangements:

• [Ms Rotaru] has further restricted [Mr Rotaru]'s time with the children, allowing limited hours on Fridays and Saturdays.

• [Mr Rotaru] has expressed concerns about the restrictions and plans to apply for interim parenting orders to increase his time with the children.

Legal Proceedings:

• Both parties are preparing to cross-apply for parenting orders, including the engagement of a single expert for family reports and risk assessments.

1. The document highlights ongoing disputes over parenting roles, allegations, and the need for professional intervention to resolve the matter.

291 The parenting orders section outlines the following arrangements:

Parental Responsibility:

• Both parents have joint decision-making authority for major long-term issues concerning their children: [X] (born [in] 2011), [Y] (born [in] 2012), and [Z] (born [in] 2018). Decisions must be made jointly and evidenced in writing.

Living Arrangements:

• During school terms:
  • Week 1: Children live with [Mr Rotaru] from Tuesday after school to Thursday morning.
  • Week 2: Children live with [Mr Rotaru] from Thursday after school to Sunday at 3:00 PM.
  • Remaining time with [Ms Rotaru].
• School holidays:
  • Term holidays are split equally, alternating first halves between parents each year.
  • Summer holidays are shared on a week-about basis, alternating first weeks eachyear.
• Special occasions:
  • Mother's Day with [Ms Rotaru]; Father's Day with [Mr Rotaru].
  • Christmas and New Year's arrangements are divided between both parents.
  • Birthdays are shared for a minimum of four hours.
• Changeover Locations:

  • Changeovers occur at the children's school or the home of the parent whose time is

Communication:

• Both parents must notify each other of significant medical issues, residential address changes, and follow medical recommendations.

• Both parents can attend school and extracurricular activities, receive school documents, and communicate with school staff.

Injunctions:

• [Ms Rotaru] is restrained from taking [Z] to therapy sessions without [Mr Rotaru]'s consent (except school counselling) and from discussing family law matters with or near the children.

Overseas Travel:

• Parents can travel overseas with the children during their scheduled time, provided they give 8 weeks' notice and share travel details.

• Non-traveling parents are entitled to make-up time for missed days.

Passports:

• Passports are jointly funded and held by [Mr Rotaru], except when [Ms Rotaru] is traveling.

Pending Orders:

• Final parenting orders are subject to a family report and risk assessments.

1. These orders aim to ensure shared parental responsibility, structured living arrangements, and clear communication protocols for the children's welfare.

1. It is necessary that I grasp the nettle of determining the extent of the risk of harm to the children from the allegations that each parent makes against the other. Dr B has opined that there is a risk to the welfare of the children by Ms Rotaru not supporting the children's relationship with Mr Rotaru, in the circumstances of that relationship being essential and integral to their long-term welfare.
2. The observations and conclusions in Dr B's report are adopted by Mr Rotaru in substance and strongly supported in the submissions by the ICL. I place some weight on the circumstance of the considerable experience over many years in parenting matters that the ICL has had and the apparent care of attention to detail of the ICL. Nonetheless, the burden of these decisions remains mine and not that of the ICL or of Child Protection or of Dr B.
3. There are matters that can be interpreted as consistent with Ms Rotaru acting in a manner that does raise the risk of her not supporting the father's relationship. In the circumstances of it. I am unable to determine precisely what are the nature of the comments that Z made to her in March. But I understand the distress to her from what she says she heard.
4. I am unable to be satisfied that Ms Rotaru is acting as alleged by Mr Rotaru, and that is gatekeeping and restricting his relationship and not supporting it, as opposed to merely acting protectively, as she asserts. I am simply not able to make a finding one way or the other. However, there is a risk that Ms Rotaru may be acting in that manner.
5. In terms of the risk of harm to Z, it is not possible on this interim hearing to conclude positively that what Ms Rotaru reports Z said to her on 17 March never happened and that, on this interim hearing, I can conclude that Mr Rotaru has definitely and conclusively not ever harmed Z as alleged.
6. However, dealing with the matter as questions of risk, I am satisfied that the risk of harm by sexual abuse from Mr Rotaru is small or very small. Were I satisfied that there was any or any real risk of harm to Z from Mr Rotaru by way of sexual abuse, I would not be able to find that it was in the best interests of the children and Z, in particular, that they spend any overnight time or unsupervised time with Mr Rotaru.
7. Having read Dr B's extensive and lengthy report that attempts to answer the very questions that he was retained to answer, I place significant weight on it.
8. That does not mean that I conclude that Dr B's report is guaranteed to be correct, but balancing the risk that Dr B has got it wrong and missed some significant aspect of risk, as Ms Rotaru's counsel in articulate terms alleged that he had, I am not satisfied that there is any or any significant risk that Dr B, in his investigative and reporting process, has missed or misinterpreted any significant matters that would be relevant to his assessment of risk. Of course, that conclusion about risk of Dr B being wrong is subject to determination at final hearing.
9. In this case, there is another risk that I must grasp, and that is by not determining the matter now and taking Dr B's report into account, rather, making no findings at all about risk and saying, I will wait until all this is determined at final hearing, and hence, potentially, prejudicing the children's welfare by such delay. That is a further risk that I must take into account.

Family Law Act provisions

1. In deciding what particular parenting orders to make I must regard the best interests of the children as the paramount consideration as commanded by section 60CA of the Act. I must consider the matters described in section 60CC of the Act in making a determination as to what is in the children's best interests. I apply and take into account the whole of Part VII of the Act including the following.

major long‑term issues, in relation to a child, means issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:

(a) the child's education (both current and future); and

(b) the child's religious and cultural upbringing; and

(c) the child's health; and

(d) the child's name; and

(e) changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.

To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long‑term issue in relation to the child. However, the decision will involve a major long‑term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.

...

4AB Definition of family violence etc.

(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.

(2) Examples of behaviour that may constitute family violence include (but are not limited to):

(a) an assault; or

(b) a sexual assault or other sexually abusive behaviour; or

(c) stalking; or

(d) repeated derogatory taunts; or

(e) intentionally damaging or destroying property; or

(f) intentionally causing death or injury to an animal; or

(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or

(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.

(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:

(a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or

(b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or

(c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or

(d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or

(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.

...

60CA Child's best interests paramount consideration in making a parenting order

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.

...

60CC How a court determines what is in a child's best interests

Determining child's best interests

(1) Subject to subsection (4), in determining what is in the child's best interests, the court must:

(a) consider the matters set out in subsection (2); and

(b) if the child is an Aboriginal or Torres Strait Islander child--also consider the matters set out in subsection (3).

(2) For the purposes of paragraph (1)(a), the court must consider the following matters:

(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);

(b) any views expressed by the child;

(c) the developmental, psychological, emotional and cultural needs of the child;

(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 ;

(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;

(f) anything else that is relevant to the particular circumstances of the child.

(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:

(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); and

(b) any family violence order that applies or has applied to the child or a member of the child's family.

Additional considerations--right to enjoy Aboriginal or Torres Strait Islander culture

(3) For the purposes of paragraph (1)(b), the court must consider the following matters:

(a) the child's right to enjoy the child's Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary:

(i) to connect with, and maintain their connection with, members of their family and with their community, culture, country and language; and

(ii) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and

(iii) to develop a positive appreciation of that culture; and

(b) the likely impact any proposed parenting order under this Part will have on that right.

(4) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).

...

60CF Informing court of relevant family violence orders

(1) If a party to the proceedings is aware that a family violence order applies to the child, or a member of the child's family, that party must inform the court of the family violence order.

(2) If a person who is not a party to the proceedings is aware that a family violence order applies to the child, or a member of the child's family, that person may inform the court of the family violence order.

(3) Failure to inform the court of the family violence order does not affect the validity of any order made by the court.

60CG Court to consider risk of family violence

(1) In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child's best interests being the paramount consideration, ensure that the order:

(a) is consistent with any family violence order; and

(b) does not expose a person to an unacceptable risk of family violence.

(2) For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.

...

61DAA Effect of parenting order that provides for joint decision-making about major long-term issues

(1) If a parenting order provides for joint decision - making by persons in relation to all or specified major long - term issues in relation to a child, then, except to the extent the order otherwise specifies, the order is taken to require each of the persons:

(a) to consult each other person in relation to each such decision; and

(b) to make a genuine effort to come to a joint decision.

(2) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.

SECTION 60CC FACTORS

1. I turn now to the application of the law to those facts and allegations recited earlier. I must determine what orders to make in this matter on the basis that the best interests of the children are the paramount consideration. The following headings are a paraphrasing of the provisions of section 60CC(2), being the factors that I must consider when making parenting orders.

What arrangements would promote the safety of the child...

1. Central to the controversy on this interim hearing is the issue of the safety of the children in a physical sense of being protected from potential sexual abuse, in Z's case, and all of the children being protected from the harm of their relationship with their father not being promoted. On the other hand, I take into account what arrangements would promote the safety of the children and of Mr Rotaru and Ms Rotaru.
2. In this case, I am not satisfied that there is a significant or, indeed, very much risk at all that Z has been exposed to sexual abuse by the father. I am not satisfied that there is any significant risk of harm to the children by the mother's attitude to the father of gatekeeping, as alleged, as opposed to acting protectively in the face of the allegations as she says she understood them. I am satisfied that the orders proposed by the ICL and as proposed by Mr Rotaru are arrangements that do promote the safety of the children and the parents.
3. One of the matters that I take into account in preferring Mr Rotaru and the ICL's orders that the weekday and weekend time should move as soon as practical and within the concept described by Dr B as "gradual" is that one of the risks to the children is the harm the children may be exposed to of conflict or attitudes of unhappiness with the other parent at changeovers.
4. In those circumstances, the sooner that changeovers move from parent to parent or at either party's home and move to the more neutral and safer ground of school to school, and in the absence of the other parent, the better.

1. I take into account the views expressed by the children. I refer to the observation of Dr B of what he portrayed as the views of the children.
2. I do take into account that Y has a closer relationship with her mother, and to some degree, may be aligned with her. However, to the credit of both parents, it is both parents' position and indeed the ICL that the three children should move from household to household together, notwithstanding that Y is significantly less enthusiastic about spending extended time with Mr Rotaru than X and Z.
3. I am not satisfied that Y's hesitation about embracing longer blocks with Mr Rotaru as X and Z do is well-founded in regard to risk to her safety or to the other children.

The developmental, psychological, emotional and cultural needs of the child.

1. In this case, cultural needs do not arise save to the extent that perhaps continuation of their existing schools in their existing environment could be regarded as having a cultural aspect to it as well as merely an educational one. However, there is no dispute about that matter.
2. The most significant developmental, psychological and emotional need of the children is for peace and harmony and not to be exposed to the conflict between their parents and/or the irritation or antagonism the parents feel for each other. That significant need includes being able to spend significant and unsupervised time with each parent, but not necessarily equal time.

Benefit of a relationship with the child's parents & other (significant) people (if) safe

1. In this case, it is common ground that there is a benefit to the children having a relationship with each of their parents and that to a degree, it is safe to do so. However, there is a significant controversy as to the extent of that time and how quickly it should move to a regime as contemplated by the ICL and Dr B.
2. There is a real benefit to the children of having a significant relationship with both of their parents. I am not satisfied that the more limited orders proposed by Ms Rotaru adequately deal with promoting that relationship, and hence, the benefit to the children of the relationship with Mr Rotaru.

Anything else that is relevant to the particular circumstances of the child

1. In this regard, I take into account the number of times that Z in particular has been interviewed. He has been interviewed by Child Protection, by SOCIT and by Dr B.
2. I am not satisfied that at this point, unless Ms C sees it as essential to the therapy between the parents, that I should order that the children be further involved in the otherwise quite invasive process of explaining to a professional their feelings about the situation between their parents, their relationship with their parents and their inclinations or wishes as to time with their parents.
3. This is a case where I am satisfied that children are (as the ICL asserts) delightful children. In this case, I am satisfied that the parents need the assistance and significant assistance of the therapy.

1. In regard to the therapy, Ms Rotaru's counsel submitted that it was not a parenting order and there was no jurisdiction and that, as phrased in Oberlin v Infield (2021) 63 FamLR 88; [2021] FamCAFC 66 ('Oberlin') and this was not tethered to the orders for time, and the orders for time were not conditional upon it.
2. As counsel for Mr Rotaru pointed out to me, I have a significant power to order therapy as contained in section 13C of the Act.

Section 13C Court may refer parties to family counselling, family dispute resolution and other family services

(1) A court exercising jurisdiction in proceedings under this Act may, at any stage in the proceedings, make one or more of the following orders:

(a) that one or more of the parties to the proceedings attend family counselling;

(b) that the parties to the proceedings attend family dispute resolution;

(ba) that one or more of the parties to the proceedings make use of children's contact services provided by CCS businesses;

(c) that one or more of the parties to the proceedings participate in an appropriate course, program or other service.

(1A) The court must not make an order under paragraph (1)(c) that parties make use of children's contact services at any time when CCS practitioners and CCS businesses may be accredited under the Accreditation Rules.

(2) The court may suggest a particular purpose for the attendance or participation.

(3) The order may require the party or parties to encourage the participation of specified other persons who are likely to be affected by the proceedings.

(4) The court may make any other orders it considers reasonably necessary or appropriate in relation to the order.

(5) The court may make orders under this section:

(a) on its own initiative; or

(b) on the application of:

(i) a party to the proceedings; or

(ii) a lawyer independently representing a child's interests under an order made under section 68L.

1. At first blush, section 13C is very wide in that it refers to an appropriate course, program or other service. Unless read down, the literal words of appropriate course, program or other service would include matters entirely unconnected to the lives of the parents or of the children or the welfare of the children or anything else. Some members of the community would see an appropriate course as including horse riding for either of the parents or the children or, in the event either of the parents consumed cigarettes, some sort of course to promote cessation of smoking.
2. When put in that way, it can be seen that Parliament cannot have intended that the appropriate course, program or other service is entirely unconstrained. I am satisfied that the appropriate course, program or other service must be tethered to matters that relate to the welfare of the children, which would include the parental relationship. I am satisfied that the family therapy for the purpose of the parents' relationship is an appropriate course, program or service within the meaning of section 13C(1)(c).
3. I note that in terms of section 11E of the Act that Dr B, who was consulted by the parties for the purpose of a risk assessment and family report, has considered that such therapy is appropriate. The requirement of section 11E also informs part of the limitation on the otherwise very broad interpretation of section 13C. Section 11E of the Act is as follows:

Section 11E Courts to consider seeking advice from family consultants

(1) If, under this Act, a court has the power to:

(a) order a person to attend family counselling or family dispute resolution; or

(b) order a person to participate in a course, program or other service (other than arbitration); or

(c) order a person to attend appointments with a family consultant; or

(d) advise or inform a person about family counselling, family dispute resolution or other courses, programs or services;

(e) may, before exercising the power, seek the advice of:

(i) if the court is the Federal Circuit and Family Court of Australia--a family consultant nominated by the Chief Executive Officer; or

(ii) if the court is the Family Court of a State--a family consultant of that court; or

(iii) if the court is not mentioned in subparagraph (i) or (ii)--an appropriately qualified person (whether or not an officer of the court);

as to the services appropriate to the needs of the person and the most appropriate provider of those services; and

(f) must, before exercising the power, consider seeking that advice.

(2) If the court seeks advice under subsection (1), the court must inform the person in relation to whom the advice is sought:

(a) whom the court is seeking advice from; and

(b) the nature of the advice the court is seeking.

1. I am not satisfied that the risk of harm to Z in Mr Rotaru's care is such that it is necessary to activate the further therapy that Ms Rotaru presses. I am not satisfied it is appropriate to activate that further therapy at this point on this evidence, at all, and I am not satisfied that it is appropriate to activate that therapy, as pressed, as conditional on the time that would otherwise be occurring. I am not satisfied in the circumstances of there being no significant risk of sexual - of harm by sexual abuse to Z and that in that circumstance that it is necessary to undertake the further therapy for Z that would, in part, reinforce the broad impression that something has happened to Z that requires further care. On the evidence that I have on this interim hearing, I am unable to make that conclusion. I repeat that were I satisfied that there was any significant risk of harm by sexual abuse to Z, I would not make any orders as to unsupervised or overnight time.

1. The form of the orders pressed by Mr Rotaru is what can be described as, in terms of nights over a fortnight, a three-night plus one night plus one night arrangement. The ICL seeks the longer Friday to Monday alternate weekend and every second week a Wednesday and Thursday overnight, which could be described as in school term of three plus two nights each fortnight arrangement which is more or less proposed by Dr B. The difference is that on Mr Rotaru's proposal, there will be the longer weekend from after school Friday to before school Monday, plus overnight on each Wednesday, but one night overnight on each Wednesday, as opposed to two nights on every second week.
2. The arrangement proposed by Mr Rotaru is closer to the arrangement that is common ground between the parties. It is common ground between the parties that there should be weekend time (albeit there being a dispute as to the extent of that time) as well as time on each Wednesday (albeit a dispute as to whether that should be extended overnight until the Thursday morning). Hence, the form of the orders as pressed by Mr Rotaru is closer to the common ground formulation, notwithstanding the significant difference between what is pressed by Mr Rotaru and what is pressed by Ms Rotaru.

1. I now turn to the financial matters. In terms of the financial dispute, the context is the property pool, as referred to before, and the actual income of the parties. The reality of Mr Rotaru's self-employment in financial services, as pressed by him, is that what he describes as his income of $1635 per week actually comes from trailing commissions from deals or arrangements previously made. I do not understand it to be related to any actual activity or work (save as to monitoring) to earn that trailing commission.

1. The other aspect is that Ms Rotaru's income, according to her, is limited to a total of $300 per week, being roughly 10 hours work each week at a rate of about $30 per hour. During the hearing, I expressed to counsel for Ms Rotaru some circumspection on my part as to whether or not Ms Rotaru had attempted to fully exercise her income earning capacity.
2. I expressed to counsel for Mr Rotaru the same circumspection in regard to the exercise of his earning capacity. However, circumspection about whether an earning capacity is being fully exercised is a different thing, and a far different thing, from a finding that there is no attempt to exercise an earning capacity at all.

1. I note that Ms Rotaru seeks litigation funding as well as a property settlement. In the context of the property pool as described above, it is clear that Ms Rotaru will receive at final hearing, or by agreement at an earlier time, a substantial property settlement and much in excess of what Ms Rotaru seeks as either litigation funding and/or part of the property settlement.
2. Ms Rotaru's case in regard to litigation funding, part property settlement and periodic spousal maintenance is that the parties have lived a comfortable lifestyle with a high standard of living for many years, demonstrated by the maintenance of their home in what can be regarded as an expensive suburb, the expensive private schools that the older two children attend, and the circumstance of attending a private but local school that the youngest child attends, combined with the usual purchase of the motorcars that the parties drive, as well as the extent of their claimed expenditure.
3. I am satisfied that the parties have lived what can be described as a decent and reasonably comfortable standard of living. Nonetheless, this is not a case where there are Lamborghinis or Ferraris in the driveway, racehorses at a chosen stable, bottles of Grange Hermitage or the other accoutrements of the very wealthy
4. Ms Rotaru's application sought a part property order at this time in the sum of $50,000 and sought litigation funding in the sum of $70,000 at this time. Her outline of case and application had sought part property settlement of $150,000 and litigation funding of $100,000. I infer that the change down in what she sought was an attempt to realistically grasp the financial circumstances of the family.
5. Further, Ms Rotaru sought litigation funding of $70,000 in the circumstances that, doing the best she could, it appeared that Mr Rotaru had applied about $70,000 of joint funds to his own legal expenses. Hence, not unreasonably, she sought the same.
6. Mr Rotaru contended that of that $70,000 which was conceded, roughly $10,000 had come from litigation funding and hence, roughly $60,000 had come from otherwise joint funds from the Act perspective.

1. Mr Rotaru asserts, and it is either not disputed or Ms Rotaru is not in a position to dispute, that the property pool essentially boils down to the usual accoutrements of modest savings in bank accounts, modest motorcars and the substantial equity that is demonstrated in the FMH and from the property pool as described above. In addition, there is the substantial investment in the trust described above.
2. Mr Rotaru asserts that those investments are almost entirely tied up in short-term loans that he has arranged to borrowers, at attractive to the lender interest rates. Further, he asserts that the bulk of those funds will become payable and will be paid on 24 June 2026.
3. Mr Rotaru's position was that he concedes that Ms Rotaru's settlement in total quantum will be in the sum of considerably more than what she presses as part property settlement and/or litigation funding and says that he has no objection to any reasonable litigation funding or property settlement being made from when those funds are available.
4. I raised with counsel the potential conceptual characterisation of Mr Rotaru's circumstances as similar to a farmer where the crop has been planted and will be harvested in the nine months hence on 24 June 2026, but with more certainty than the farmer's harvest.
5. The gist of Mr Rotaru's position was, "Please do not press me for part property settlement now. The appropriate time to press would be when those funds come in." It is unchallenged that Ms Rotaru will, until settlement of the property proceedings or court orders, remain in possession of the former matrimonial home, and the value of that home represents more than half the pool of assets available for division. Further, Mr Rotaru's case is that he has been and will continue to make the payments set out in exhibit 'H2' which is as follows:

1. It is Mr Rotaru's case that for the welfare of the family, he intends to continue to make those payments. However, he says, he cannot make those payments from his income of the trailing commissions, and effectively, he has been making those payments by applying the parties' capital to those payments. The extent of those payments is close to a quarter of a million dollars per annum in after-tax payments. I have raised in discussion with Mr Rotaru that the home loan repayment is of interest and capital and that Mr Rotaru should be at liberty to attempt to negotiate a reduction, at least, in the short term, of that liability being an interest-only liability. Mr Rotaru estimates, and I accept, that if he was able to do so that would reduce that very significant, roughly $9000 per week liability by about $2000.
2. The list of assets described in Mr Rotaru's affidavit includes funds at bank of about $245,000. However, Mr Rotaru asserts, and Ms Rotaru appears to accept, although perhaps unhappily, that there is only about $119,000 of those funds left at this point in time. That is entirely consistent with Mr Rotaru's position that he meets his own expenses as well as the substantial expenses of Ms Rotaru's household and the children's educational expenses from capital. Upon my calculation, he only has enough capital or income to get through the next six months or so.
3. It is also his case that at final hearing or mediation, as soon as the valuation process is completed, that it is a straightforward case, eminently capable of settlement, and should be and is likely to be settled at mediation. Whether Mr Rotaru's optimism is well-founded remains to be seen.
4. However, it is apparent on Mr Rotaru's case that there is a crisis looming in terms of funds to go round. It is significant that Mr Rotaru rents accommodation, and I am unable to find a basis to be critical of the extent of that expense. Ms Rotaru does criticise it on the basis that he should have got a better property for the overnight accommodation of the children but I make no finding of that. However, it is common ground that it is nearby to the former matrimonial home and hence is sensible in that regard. I am unpersuaded that there is anything wasteful in regard to that expense.
5. However, as can be seen, the claimed expenditure by Mr Rotaru significantly exceeds his very modest income from the trailing commissions.

1. In terms of the reasonable needs or the discretionary expenditure of the parties, I note that Mr Rotaru's part N[4] or day-to-day discretionary expenditure at this point in time is a total of $4,777 per week, but that a large part of that relates to the educational expenses of the children. When the educational expenses of the children are removed, Mr Rotaru's expenditure on discretionary matters becomes, then, a much more modest expenditure of $2,912 per week. This includes substantial expenditure for the children's benefit and for the household of the mother.
2. The reasonableness of Mr Rotaru's expenditure described in his part N was not seriously challenged. I acknowledge it is difficult to challenge same on an interim hearing on the papers. The expenditure that Ms Rotaru seeks in regard to her personal support is as set out in her financial statement,[5] and totals $1707. The expenditure Mr Rotaru puts forward on only his own account is a much lower $713.

1. I now turn to the legal principles in determining this interim case. The starting point is section 72 of the Act, which provides as follows:

(1) A party to a marriage is liable to maintain the other party, to the extent that the first - mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:

(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;

(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or

(c) for any other adequate reason;

having regard to any relevant matter referred to in subsection 75(2).

1. The powers of the Court in regard to spousal maintenance were not questioned, and hence it is unnecessary to recite section 74 of the Act. Section 75 provides a shopping list of extensive matters to be taken into account, which are as follows:

Section 75 Matters to be taken into consideration in relation to spousal maintenance

(1) In exercising jurisdiction under section 74, the court shall take into account only the matters referred to in subsection (2).

(2) The matters to be so taken into account are:

(aa) the effect of any family violence to which one party has subjected or exposed the other party, including on any of the matters mentioned elsewhere in this subsection; and

(a) the age and state of health of each of the parties; and

(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and

(c) the extent to which either party has the care of a child of the marriage who has not attained the age of 18 years, including the need of either party to provide appropriate housing for such a child; and

(d) commitments of each of the parties that are necessary to enable the party to support:

(i) himself or herself; and

(ii) a child or another person that the party has a duty to maintain; and

(e) the responsibilities of either party to support any other person; and

(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:

(i) any law of the Commonwealth, of a State or Territory or of another country; or

(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;

and the rate of any such pension, allowance or benefit being paid to either party; and

(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and

(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and

(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and

(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and

(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and

(l) the need to protect a party who wishes to continue that party's role as a parent; and

(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and

(n) the terms of any order made or proposed to be made under section 79 in relation to:

(i) the property of the parties; or

(ii) vested bankruptcy property in relation to a bankrupt party; and

(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:

(i) a party to the marriage; or

(ii) a person who is a party to a de facto relationship with a party to the marriage; or

(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or

(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and

(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and

(p) the terms of any financial agreement that is binding on the parties to the marriage; and

(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage; and

(r) any other fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.

(3) In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.

"party" means a party to the marriage concerned.

1. I will turn now to some of the authorities that assist determine this matter, and I am assisted by the helpful summary of the well-known decision in the case of Mitchell [1995] FamCA 32; (1995) 19 Fam LR 44: From the headnote:

(v) The question of whether the applicant for spousal maintenance could support herself adequately was to be determined having regard to the matters referred to in s 75(2). There is no fixed or absolute standard to be applied. Nor was the question to be determined upon a "subsistence" level. The property order in favour of the wife was relatively modest and should not disentitle her to spousal maintenance...

1. In Badir & Badir (2022) 65 Fam LR 166, McClelland DCJ observed as follows at paragraph 20:
   1. The appropriate process to follow in considering an application for spousal maintenance is the four-step process as set out in Saxena & Saxena (2006) FLC 93-268; [2006] FamCA 588 per Coleman J:

(1) To what extent can the applicant support him/herself?

(2) What are the applicant's reasonable needs?

(3) What capacity does the respondent have to meet an order?

(4) If steps 1-3 favour the applicant, what order is reasonable having regard to s 75(2)?

1. I am satisfied that that is an appropriate methodology to follow, and I will attempt to follow it.
2. In the circumstances where Ms Rotaru has, throughout the long relationship, been primarily involved in the day-to-day care of the household, home-making for the children, herself, and Mr Rotaru, and the care of the children until the end of the relationship, I am not satisfied that it is reasonable to expect Ms Rotaru to have obtained and be able to support herself solely by her own employment at the same time as caring for the children.
3. In the circumstances of a quite recent separation and a significant change in the lifestyle of Ms Rotaru, I am satisfied that she does have some time available to her for employment.
4. I acknowledge that the obligation to pay maintenance arises in the circumstances of if and only if a party is unable to support themselves. In this case, notwithstanding that I am circumspect that Ms Rotaru could earn some greater sum of funds, I am satisfied that she is unable to support herself by her own resources of either employment and/or resort to capital at this time. Ms Rotaru, in her financial statement, has a tiny buffer of modest savings of a little over $2000.
5. The sum of spousal maintenance sought on a periodic basis was calculated by Ms Rotaru's counsel in address to me based upon what Mr Rotaru asserts he has been spending on Ms Rotaru's household upkeep. He asserts that totals $1610 in discretionary expenditure, not mortgage payments or educational expenses.
6. Ms Rotaru's counsel ultimately pressed that sum to be $1234 per week, but on the basis that Ms Rotaru would no longer seek to use what would otherwise be the joint credit card, serviced by Mr Rotaru, in turn serviced by his limited income and capital.
7. Ms Rotaru's claimed expenditure within the household of herself and the children is the sum of $3328. Mr Rotaru's claimed expenditure for himself and the children, excluding educational matters, as I understand it, would be the sum of $713, which would be about $589 plus the $717 in discretionary expenditure, a total of $1302.
8. That, of course, is expense to Mr Rotaru on the children for the limited time he has them. His expenses now to support the children will be greater than previously.
9. I note the observations in Stein & Stein [2000] FamCA 102, (2000) FLC 93-004 ('Stein') as to the importance of section 75(2)(b) of the Act of having a greater significance in determining the capacity of the payer to provide the support, rather than in determining the extent to which the other party requires support.
10. Hence, Mr Rotaru's discretionary expenditure that he claims, noting that his expense to support the children will soon be much greater than it has been, is $1302 and Ms Rotaru's claimed expenditure for herself and supporting the children in discretionary expenditure, but on the basis that she is supporting the children most of the time in terms of day-to-day expenditure, totals, on her account, $3,328.
11. It is clear that the periodic spousal maintenance that Ms Rotaru seeks in terms of discretionary expenditure for the support of her household is now the sum of (apart from what Mr Rotaru pays for her household) the further sum of $1234, plus the child support figure of $296, which she will receive anyway. That comes to the figure, in terms of discretionary expenditure Ms Rotaru would have available to her, of about $1530 per week.
12. In the circumstances of Mr Rotaru seeking or claiming to expend at the moment a sum of $1302 per week, a sum that will be greater very soon, it is apparent that Ms Rotaru's claim for spousal maintenance is a reasonable one in all the circumstances.
13. As could be reasonably expected, Ms Rotaru will have to make some significant economies within her household, even if she is to obtain the spousal maintenance order as sought and some further income from further employment. Nonetheless, by comparing those two claimed expenditures and allowing for some clunkiness and infelicity of the nature of the form of the financial statement and the nature of dealing with it on an interim hearing, I am satisfied that Ms Rotaru's claim for a periodic spousal amount of $1234 is reasonable and that in the sense of Badir, Ms Rotaru has a limited capacity or extent of being able to support herself and that her reasonable needs are at least and likely more than the sum of $1234 that she seeks.
14. Turning then to the third point of the Badir. In circumstances where I cannot see any real challenge on this interim hearing to Mr Rotaru's claims of a limited income from trailing commission only and otherwise from having to draw on capital. I am not satisfied that Mr Rotaru has any capacity to meet a periodic spousal maintenance order from what he regards as his income. I put aside for the moment the issue of whether a trailing commission could be regarded as an asset, and I treat it as Mr Rotaru is effectively using it, that is, for day-to-day support.
15. I am then required to take into account those three findings and order what is reasonable. I am satisfied that, on the evidence I have, I cannot make a spousal maintenance order, in a period fashion, of $1,234 per week. However, as recited in Maroney & Maroney [2009] FamCAFC 45, on an interim spousal application, I am not limited to considering only the payer or putative payer's income.
16. I am satisfied that Ms Rotaru has established a need for spousal maintenance, and a need in the order of at least $1234, on the basis that Mr Rotaru continues to pay the matters set out in H2. However, there is no capital fund available. But I am satisfied that were such an application to be made and Ms Rotaru to cooperate with it, that it is likely that a significant sum could be raised.
17. I am satisfied that it is appropriate and necessary within section 75(2)(r) that the parties should join and, together, make application for further borrowings and, if necessary, secured upon the former matrimonial home to achieve the most efficacious interest rate, whether by second mortgage or otherwise, a sum that would provide 12 months' worth of what would otherwise be appropriate weekly spousal maintenance if Mr Rotaru had the capacity to pay that sum from income. Rounding that sum of 52 weeks of $1,234 (as Ms Rotaru seeks on a periodic basis) I get a sum of $65,000.
18. Hence, I will order that the parties do all acts and things to apply for and obtain further borrowings secured on the matrimonial home in the sum of $65,000 plus any necessary borrowing expenses plus an amount calculated to cover any further necessary periodic or interest payments on such sum (the sum borrowed will have to be in excess of $65,000 and likely to be something in the order of at least $70 to 75 thousand dollars), with such sum to be made available to Ms Rotaru on the basis that that is lump-sum spousal maintenance available for her support over the next 12 months and in addition to the child support assessment.

1. I now turn to the issue of litigation funding. I am satisfied that, in this case, the Bing & Bing[6] approach of "make the order and leave it up to [Mr Rotaru] to work out how to make the payment" is not appropriate. I also note that Mr Rotaru has not yet made an application for litigation funding, as Ms Rotaru has. I also note that Mr Rotaru does not object to Ms Rotaru obtaining part of her likely property settlement from the funds that will become available to the family on or about 24 June 2026.
2. I am not satisfied that an order for litigation funding should be made, but rather, an order should be made for part property settlement. If Ms Rotaru chooses to apply the same to legal fees, that is a matter for her. I do note the extent to which Mr Rotaru has used family resources to pay his legal fees. However, this is an interim hearing, and all of those matters can be adjusted as is just and equitable on the final hearing.
3. Taking all of those matters together, including that Ms Rotaru's ultimate property settlement will significantly exceed this sum, I am satisfied that from the funds to be received and controlled by Mr Rotaru or his entities on or about 24 June 2026, Ms Rotaru should then receive, as soon as practical after those funds are made available, the sum of $150,000 on account of part property settlement.
4. I otherwise dismiss the application for part property settlement and litigation funding.
5. Those are my reasons.

I certify that the preceding one hundred and eleven (111) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy.

The orders at paragraph 1 and 2 down to 2.5.1 are agreed.

I propose to make the orders, as pressed by Mr Rotaru, at orders 2.5.2, that is, that the children should live with Ms Rotaru, but Mr Rotaru's time should be from the conclusion of school, or 3 pm if not a school day, until 8 pm, commencing on 15 October 2025, and each alternate week thereafter. I further order that that time be extended from the week commencing 17 November 2025, to conclude at the commencement of school on Thursday, or 9 am, if Thursday is not a school day.

In regard to the controversy at 2.5.2.2, the order that I make will be as pressed for by Mr Rotaru, that is, that the time from the conclusion of school on Friday, or 3 pm, if not a school day, until 6 pm on Sunday, and such time to be extended from the week commencing 24 November 2025, to conclude at the commencement of school on Monday, or 9 am, if Monday is not a school day, commencing 17 October and each alternate week thereafter.

In regard to the orders for the coming school holidays, I will make these orders at the commencement of the school holidays, where although not agreed between Mr Rotaru and Ms Rotaru, in conformity with the orders pressed in the outline of case by the ICL. That is, the first block time during the school holidays will be of five days duration for Mr Rotaru. I will make the order, where controversial, at 3.1.2, as sought by Ms Rotaru.

In regard to 3.1.4, which is controversial, I will make that consistent with the orders pressed by the ICL in the outline of case, so that the time with Mr Rotaru will be six days, and that from the commencement of the regime at 3.1.5, that time will be as pressed by Mr Rotaru.

I will direct that the parties confer and bring in a minute to precisely set out the time that the children will spend with Ms Rotaru, in accordance with the form of the order in C2. What that means is that the orders, as at controversial paragraph 3.2, will be that the children will spend time with Mr Rotaru - sorry, will live with Mr Rotaru, as proposed by Ms Rotaru (in blue), as the provision at 3.2.1.

And in regard to the controversial provision at 3.2.3, to give effect to the scheme of a six-day block as pressed by the ICL, that will read neither as the blue or the red, but rather, so that that will be from 5 pm on 26 December 2025 (that much is common ground) until 5 pm on 1 January 2026. The controversial provision at 3.2.4 will then be as Mr Rotaru proposes in red. In regard to the controversial provision at 3.2.5 (that is the last little part of the school holidays) where the children will be with Mr Rotaru from 23 January until 12 pm, on the day before the commencement of term 1, 2026.

The controversial order number 4 will be half of the school holidays in 2026 and thereafter as proposed by Mr Rotaru.

Thereafter, the orders by consent will be made.

And then turning to the controversy about family therapy, that order will be broadly in the form of paragraph 10 but varied to the following effect. The therapist will not be the nominated Mr Q for the reasons stated later but, rather, if available, Ms C. The order will read as follows: the parties forthwith do all acts and things that may be required to jointly appoint Ms C as family therapist for the purpose of the parents engaging in non-reportable family therapy/parental relationship therapy, and for this purpose: 10.1, Ms C is engaged to assist the parents with the implementation of these orders and to address any other issues or concerns of the parents; 10.2, Ms C's cost be paid by Mr Rotaru in the first instance, with Ms Rotaru's half share adjusted on interim or final property settlement subject to the determination at final hearing.

Paragraph 10.3 will read that the parties follow all reasonable recommendations of Ms C incidental to the therapy, including but not limited to attending appointments or facilitating the children's attendance at appointments as and when directed; and 10.4, that the parents ensure that the children or any of them attend for involvement in the family or relationship therapy to the extent directed by Ms C. The order - what was 10.4 will become 10.5 that provides not Mr Q but Ms C and will have the further orders added to it at the end of the 67ZBD report as background and context for the therapy but not as concluded or determined facts.

The order pressed by Ms Rotaru at paragraph 16, that is, the therapy for Ms R, the psychologist, and Ms S, psychologist, will not be made at this stage. Mr Rotaru tells me via his counsel that he has arranged an appointment for a hair follicle test and on the basis that the hair follicle test result is to be contemporaneously provided to Ms Rotaru's lawyers at the same time it is provided to him and/or his lawyers. Hence, given the reliability of the service that he has proposed to attend this day or soon thereafter, as he can, it is not necessary to make that order. But the orders that I make are on the basis that Mr Rotaru will do as he says and either today or very soon thereafter attend for a hair follicle test, noting that the usual or standard hair follicle test covers the last three months. I will make, for the avoidance of doubt, the notation that Mr Rotaru seeks at notation A, and rather than it is that simply stated - that will have that - the words "it is intended that the usual fortnightly term time recommence on 30 January, with the children to spend the first weekend with their mother." The agreed notation at (b) will be included, but the - I note notation (c), as pressed by Ms Rotaru, which was effectively her position in the case, that is, that overnight time should only commence with Mr Rotaru upon the therapy that she sought for Z being commenced.

[1] Two interim hearing and one res tempore judgment delivered.

[2] I proceed on the basis that Ms Rotaru's reports are at least not mala fide, whether or not they are accurate.

[3] The affidavit was affirmed on 23 July 2025 but sealed on the Courts Portal on 24 July 2025.

[4] Of Mr Rotaru's financial statement filed on 12 September 2025.

[6] [2007] FamCA 418, (2007) FLC 93-318