Mamat & Sepri (No 2) - [2022] FedCFamC2F 1667

Federal Circuit and Family Court of Australia
(DIVISION 2)
Mamat & Sepri (No 2) [2022] FedCFamC2F 1667

File number(s): ADC 3712 of 2021

Judgment of: JUDGE DICKSON

Date of judgment: 6 December 2022

Catchwords: FAMILY LAW - CHILDREN – parenting orders – six children – where the youngest child was aged ten months at Trial – unilateral relocation of the children by the mother to Melbourne – where the mother has significant physical disabilities – where previous interim orders were made for the five eldest children to return to live with the father pending Trial – where both parties refuse to relocate closer to each other from their respective States – final orders by consent for equal shared parental responsibility – where the Court orders the children to live in Melbourne with the mother – time spending arrangements between the children and the father – view of gradually increasing time between the father and the youngest child – best interests of the children

Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA.

Cases cited:
AMS v AIF (1999) CLR 160

Bale & Bale [2016] FCCA 680

D & SV [2003] FamCA 280

Hall & Hall (1979) FLC 90-713

Heath v Hemming (No 2) [2011] FamCA 749

Malcolm & Monroe & Anor [2011] FamCAFC 16

MRR v GRR (2010) 240 CLR 461

U v U [2002] HCA 36.

Division: Division 2 Family Law

Number of paragraphs: 207

Date of hearing: 13-16 September 2022

Place: Adelaide

Counsel for the Applicant: Mr Childs

Solicitor for the Applicant: Daniel John Lawyers

Counsel for the Respondent: Ms Lee

Solicitor for the Respondent: Denise M Rieniets & Associates

Counsel for the Independent Children's Lawyer: Ms Boyle

Solicitor for the Independent Children's Lawyer: Legal Services Commission
ORDERS

ADC 3712 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR MAMAT

Applicant

AND:
MS SEPRI

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE DICKSON

DATE OF ORDER:

6 December 2022

BY CONSENT THE COURT ORDERS THAT:
1.All previous orders are hereby discharged.
2.The parties have equal shared parental responsibility for the children U born in 2012, V born in 2015, W born in 2016, X born in 2017, Y born in 2019 and Z born in 2021 (‘the said children’).
3.The party with whom the children are not currently spending time do communicate with the children each Monday, Thursday and Saturday at 5.30pm (Victorian time) or at any other time as agreed by way of video call or such other electronic medium so as to enable the said children to visualise each party.
4.That for the purposes of handovers, unless otherwise agreed between parties in writing:
(a)All handovers in Melbourne do take place inside the Suburb B Police Station; and
(b)All handovers in Adelaide do take place in C Street Police Station.

5.The parties shall keep the other informed of any major medical issues involving the children, particularly of any medical attention or treatment received by the children, any medication requirements or medical appointments, and this notification shall be as immediate as practicable in the event of a medical emergency.
6.Both parties shall keep the other informed of the names and contact details of all regular treating medical practitioners for all or any of the children and each party shall be at liberty to contact the said medical practitioner/s to obtain all usual information that is provided to parents within the discretion of the said medical practitioner.
7.Each party be at liberty to attend at parent teacher interviews and all other events to which parents are ordinarily invited and access all information that parents are ordinarily entitled to access at their own expense.
8.Neither party shall denigrate or permit any other person to denigrate the other party or any member of the other party’s family or friends in the presence or hearing of the children.
9.Each of the parties do all such things and sign all such documents as may be necessary to ensure that the father is recorded as the father on Z’s birth registration.
10.The appointment of the Independent Children’s Lawyer shall be discharged.

IT IS FURTHER ORDERED:
11.That the father do deliver the said children U, V, W, X and Y to the mother at 4:00pm on Saturday 17 December 2022.
12.That the said children do live with the mother.
13.That the said children do spend time with each of the parties for the Christmas 2022/2023 school holidays as follows:
(a)With the mother from 4:00pm Saturday 17 December 2022 to 4:00pm Saturday 7 January 2023 (or such other collection time as the father may advise in writing); and
(b)With the father from 9:00am Saturday 7 January 2023 to 4:00pm Friday 27 January 2023 (or such other delivery time as the father may advise in writing).

14.The said children U, V, W, X and Y do spend time with the father as follows:
(a)During each short mid-term school holiday period as Gazetted by the Victorian Education Department for a period for ten (10) days commencing at a time nominated by the father in writing on the first Saturday of the said holiday period and concluding no later than 6:00pm on the second Wednesday of the said period;
(b)During the Christmas school holiday period as Gazetted by the Victorian Education Department in 2023/24 and each alternate year thereafter from no later than 6:00pm on the first Saturday of the said period until no later than 6:00pm on the fourth Saturday of the said period;
(c)During the Christmas school holiday period as Gazetted by the Victorian Education Department in 2024/25 and each alternate year thereafter from no later than 6:00pm on the fourth Saturday for the said period until no later than 6:00pm on the last Saturday of the said period; and
(d)During any other time the father travels to Melbourne on dates and times to be agreed between the parties in writing, with the father to give the mother no less than twenty-one (21) days prior written notice of his intention to visit Melbourne, Victoria.

15.That unless otherwise agreed between the parties in writing the child Z born in 2021 do spend time with the father as follows:
(a)On Saturday 17 December 2022 from 4:00pm to 5:00pm following the delivery of the said children pursuant to paragraph 11 herein;
(b)On Saturday 7 January 2023 from 9:00am to 11:00am following the collection of the said children pursuant to paragraph 13.(b) herein;
(c)On Friday 27 January 2023 from 4:00pm to 6:00pm following the delivery of the said children pursuant to paragraph 13.(b) herein;
(d)At the father’s election on Saturday 28 January 2023 from 9:00am to 11:00am;
(e)At the father’s election for the first and last days of the short term school holidays as provided for herein in paragraph 14.(a) herein in 2023 from 9:00am to 1:00pm on each of those days;
(f)At the father’s election for the first, second, third and last days of the Christmas long term holidays as provided for in paragraph 14.(b) herein in 2023/24 from 9:00am to 3:00pm on each of those days;
(g)At the father’s election for the first, second and last days of the short term school holidays in 2024 as provided for in paragraph 14.(a) herein from 9:00am to 4:00pm on each of those days;
(h)At the father’s election for the first, second, third and last days of the Christmas long term school holidays in 2024/25 as provided for in paragraph 14.(c) herein from 9:00am to 6:00pm on each of those days;
(i)At the father’s election on the first and ninth days of the father’s time in the April 2024 short school holidays as provided for in paragraph 14.(a) herein commencing at a time nominated by him in writing until 4.00pm the following day and on condition that all such time take place in Melbourne;
(j)At the father’s election in the June/July 2024 short school holidays as provided for in paragraph 14.(a) herein for up to two separate periods of 48 hours commencing and concluding at times nominated by the father in writing and on condition that all such time take place in Melbourne;
(k)As and from the September 2024 short school holidays then in accordance with paragraph 14.(a) herein;
(l)During the 2024/25 Christmas school holidays for a period of up to 10 consecutive nights to coincide with the time spending referred to in paragraph 14.(c) herein; and
(m)As and from the 2025/26 Christmas school holidays then in accordance with paragraphs 14.(b) and 14.(c) herein.

16.That the parties are at liberty to vary the orders for time spending between the said children and the father as provided for herein on condition that any such variations are agreed in writing.
17.That the mother is at liberty to have an agent accompany her to the handovers referred to herein.
18.That unless otherwise agreed between the parties in writing all handovers do take place in Melbourne, Victoria.
19.That the parties are at liberty to arrange for the said children to travel between Melbourne and Adelaide by air on condition that:
(a)All such costs are paid for by the father; and
(b)The father shall provide the mother with a flight itinerary at least twenty-one (21) days in advance of the time spending period.

20.That the said children do communicate with the party with whom they are not residing for the purposes of special occasions such as Christmas Day, Easter Sunday, Mother’s Day, Father’s Day and the birthdays of each of the children and each of the party’s at 5:30pm (Victorian time) by way of video call or such other electronic medium so as to enable the said children to visualise each party.
21.That the parties be restrained and injunctions are granted restraining the parties from:
(a)Assaulting denigrating or abusing the other in the presence of the said children or otherwise and allowing any other person so to do;
(b)Calling the child Z by any name other than his registered birth name as stated herein; and
(c)Discussing these proceedings or any issues arising from these proceedings with or in the presence of any or all of the said children or allowing any other person so to do.

22.That all extant applications are hereby dismissed.

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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Mamat & Sepri (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE DICKSON:
INTRODUCTION

These proceedings concern competing applications for parenting orders by the applicant father, Mr Mamat (‘the father’), and the respondent mother, Ms Sepri (‘the mother’).
These are the Court’s Reasons for Judgment following the Trial in this matter which occurred from 13-16 September 2022.
DOCUMENTS RELIED UPON AT TRIAL
The father relied upon the following documents at Trial:
(1)Further Amended Initiating Application filed 7 September 2022;
(2)Trial affidavit filed 4 August 2022; and
(3)Affidavit in reply filed 7 September 2022.
The mother relied upon the following documents:
(1)Amended Response to Initiating Application filed 5 September 2022;
(2)Trial affidavit filed 29 August 2022; and
(3)Trial affidavit of Ms D filed 24 August 2022.
The Independent Children’s Lawyer sought to rely on the Family Report prepared by Court Child Expert Ms E dated 18 May 2022.
The parties also tendered by way of exhibit:
(1)Series of emails to the father from Births Deaths and Marriages Victoria dated between the period of 10 December 2021 and 13 September 2022 (Exhibit F1);
(2)Husband’s work rosters for the period June to August 2022 (Exhibit M1);
(3)Pay slip from Department of Human Services in the name of the husband for the period 13 August 2022 to 26 August 2022 (Exhibit M2);
(4)Suburb F Day Care Statement of Entitlement dated 12 September 2022 in the name of the husband (Exhibit M3);
(5)G School Tax Invoice dated 31 July 2022 (Exhibit M4);
(6)Bundle of G School OSCH invoices for period 5 September 2022 to 11 September 2022 in the name of the husband (Exhibit M5);
(7)Letter from H Services dated 29 August 2022 (Exhibit M6);
(8)Letter from J Support Service dated 24 August 2022 (Exhibit M7);
(9)Timecard Compare Reports in the name of the father for the period 30 June 2021 to 1 June 2022 (Exhibit M8); and
(10)Draft consent Minute of Order (Exhibit I1).
ISSUES IN DISPUTE
The issues for the Court to determine at Trial are summarised as follows:
(1)Whether the five eldest children are to continue living in Adelaide with the father, and spend time in Melbourne with the mother; or
(2)Whether the five eldest children are to live in Melbourne with the mother, and spend time with the father in Adelaide; and
(3)What future care arrangements should be put in place for the youngest child Z, who was approximately 10 months old at the date of Trial. The mother proposes that Z live with her and spend time with the father. The father proposes that the child spend time with him until he attains at the age of three years. At the age of three years the father seeks that the child immediately transition into his primary care and spend time with the mother as ordered for the eldest five children.
To their credit, by the conclusion of the Trial the parties were able to agree a raft of final orders by consent, including an order for equal shared parental responsibility.
At Trial neither party would countenance moving to the one city so that they could care for the children in the one location. The father proposed that he remain living in Adelaide. The mother proposed that she remain living in Melbourne.
THE FATHER’S POSITION
At Trial, the father sought the following final orders as set out in his Amended Initiating Application filed 7 September 2022:
1.That the father and mother have equal, shared parental responsibility and for this purpose they shall be jointly responsible for making decisions about any major, long-term issues in the care, welfare and development of the children of the relationship, [U] born [in] 2012, [V] born [in] 2015, [W] born [in] 2016, [X] born [in] 2017, and [Y] born [in] 2019, and [Z] born [in] 2021 ("the children") that may arise.
2.That the children [U] born [in] 2012, [V] born [in] 2015, [W] born [in] 2016, [X] born [in] 2017, and [Y] born [in] 2019 do live with their father.
3.That prior to attaining the age of 3 years, the child [Z] born [in] 2021 do live with his mother.
4.Upon having attained the age of 3 years, the child [Z] born [in] 2021 do live with his father.
5.That the children [U] born [in] 2012, [V] born [in] 2015, [W] born [in] 2016, [X] born [in] 2017, and [Y] born [in] 2019 do spend time their mother as follows:
a)Each alternate short school holiday period in Melbourne, Victoria, for a period of 10 consecutive days, with such time to commence on the first Saturday of that holiday period at 4:00pm; to commence in the Term 3 South Australian school holidays which begin on 1 October 2022;
b)Each alternate short school holiday period in Adelaide, South Australia, for a period of 10 consecutive days, with such time to commence on the first Saturday of that holiday period at 4:00pm; to commence in the Term 1 South Australia school holidays which begin on 15 April 2023;
c)During the long summer school holidays in each even-numbered year in Melbourne, Victoria, for the first three consecutive weeks of that period, with such time to commence on the first Saturday of that holiday period at 4:00pm;
d)During the long summer school holidays in each odd-numbered year in Melbourne, Victoria, for the last three consecutive weeks of that period, with such time to commence on the Saturday at the end of the third week of that holiday period at 4:00pm·
e)At such other times as may be agreed between parties.
6.That when the mother is spending time with the children in Adelaide, South Australia, in accordance with paragraph 5(b) above, the father shall spend time with [Z] born [in] 2021 for ten consecutive days during that holiday period (to correspond with the time that the mother is spending with the other children during that period) each day from 9:00am to 1:00pm.
7.That upon having attained the age of 3 years, the child [Z] do spend time with his mother, together with his other siblings, in accordance with paragraph 5 above.
8.That all handovers do occur at the [C Street] Police Station, unless otherwise agreed by the parties in writing.
9.That the parties contribute equally to the costs of the children's travel to and from Melbourne to spend time with their mother in accordance with these Orders.
10.The mother do communicate with the children via a video call every Monday, Thursday and Saturday at 5:00pm (South Australian time) or at any other time as agreed, and the mother will ensure that such communication is private and free from any monitoring or interference from any other members of the maternal family.
11.That upon all occasions when the mother is spending time with the children in accordance with these Orders, the father do communicate with the children via a video call every Monday, Thursday and Saturday at 5:00pm (South Australian time) or at any other time as agreed.
12.That the mother be restrained and an injunction is hereby granted restraining her from removing the said children from the metropolitan area of Adelaide, South Australia.
13.That in the event that the children are ordered to live with their mother in Melbourne, Victoria, the father do spend time with the children as follows:
a)Each alternate short school holiday period in Adelaide, South Australia, for a period of 10 consecutive days, with such time to commence on the first Saturday of that holiday period at 4:00pm; to commence in the Term 3 of the South Australian school holidays which begin on 1 October 2022:
b)Each alternate short school holiday period in Melbourne, Victoria, for a period of 10 consecutive days, with such time to commence on the first Saturday of that holiday period at 4:00pm; to commence in the Term 1 of the Victorian school holidays;
c)During the long summer school holidays in each even-numbered year in Adelaide, South Australia, for the first three consecutive weeks of that period, with such time to commence on the first Saturday of that holiday period at 4:00pm;
e) At such other times as may be agreed between parties.
14.That in the event that the children are ordered to live with their mother in Melbourne, Victoria, and addition to paragraph 13 above, the following do also apply:
a)That paragraph 4 hereof shall not apply, and in lieu, the child [Z] born [in] 2021 shall remain living with his mother;
b)That paragraph 6 hereof shall not apply, and in lieu, when the father is spending time with the children in Melbourne, Victoria, in accordance with paragraph 13(b) above, the father shall spend time with [Z] born [in] 2021 for ten consecutive days during that holiday period each day from 9:00am to 1:00pm until such time as that child has attained the age of 3 years;
c)That paragraph 7 hereof shall not apply, and in lieu, upon having attained the age of 3 years, the child [Z] do spend time with his father, together with his other siblings, in accordance with paragraph 13 above;
d)That paragraph 8 hereof shall not apply, and in lieu, all handovers do occur at the [Suburb B] Police Station in Melbourne, Victoria, unless otherwise agreed by the parties in writing;
e)That paragraph 9 hereof shall not apply, and in lieu, the parties shall contribute equally to the costs of the children's travel to and from Adelaide to spend time with their father in accordance with these Orders;
f)That paragraph 10 hereof shall not apply, and in lieu, the father shall communicate with the children via a video call every Monday, Thursday and Saturday at 5:00pm (South Australian time) or at any other time as agreed, and the mother will ensure that such communication is private and free from any monitoring or interference from any other members of the maternal family;
g)That paragraph 11 hereof shall not apply, and in lieu, upon all occasions when the father is spending time with the children in accordance with these Orders, the mother shall communicate with the children via a video call every Monday, Thursday and Saturday at 5:00pm (South Australian time) or at any other time as agreed.
h)That paragraph 12 hereof shall not apply.
15.That the parties shall keep the other informed of any major medical issues involving the children, particularly of any medical attention or treatment received by the children, any medication requirements or medical appointments, and this notification shall be as immediate as practicable in the event of a medical emergency.
16.That neither party shall denigrate or permit any other person to denigrate the other party or any member of the other party's family or friends in the presence or hearing of the children.
17. That the respondent mother pay the costs of and incidental to these proceedings
THE MOTHER’S POSITION

The mother sought the following final orders, as contained in her Amended Response to Initiating Application filed 5 September 2022:
1.That the children [U] born [in] 2012, [V] born [in] 2015, [W] born [in] 2016, [X] born [in] 2017 and [Y] born [in] 2019 and [Z] born [in] 2021 live with the mother.
2. That the parties equally share the parental responsibility for the said children.
3.That the mother be at liberty to relocate the children’s usual place of residence to Melbourne, Victoria.
4.That in the event that the father remains living in Adelaide, the father spend time with the children as follows:
a)During each short mid-term school holiday period, as gazetted by the Victorian Education Department, for a period of 10 days commencing on the first Saturday of the said holiday period and concluding at no later than 6:00pm on the second Tuesday of the said period;
b)During the Christmas school holiday period in 2022 and each alternate year thereafter, from no later than 6:00pm on the fourth Saturday of the said period until no later than 6:00pm on the last Saturday of the said period;
c)During the Christmas school holiday period in 2023 and each alternate year thereafter, from no later than 6:00pm on the first Saturday of the said period to no later than 6:00pm on the fourth Saturday of the said period; and
d)During any other time that the father travels to Melbourne, for a maximum of one week during any given visit, with the father to provide the mother with notice of his intention to visit Melbourne no less than 21 days prior to the said visit.
5.That for the purposes of the time spending referred to in paragraph 4(a-c) herein, the father shall book and pay for the children's return airfares from Melbourne to Adelaide and advise the mother of same no less than 21 days prior to the flight date.
6.In the event that the father relocates to Melbourne, the children live with the parties on a week-about equal shared care basis from the conclusion of school (or 3:00pm if a non school day) on Friday to the conclusion of school (or 3:00pm if a non-school day) the following Friday, on the proviso that the father resides within 25km of the [Suburb B] School.
7.In the event that the children [U], [V], [W], [X] and [Y] are not returned to the mother's primary care in Melbourne and remain living with the father in Adelaide, then the child [Z] shall live with the mother and the father shall spend time with [Z] in accordance with paragraph 4(a-d) herein.
8.In the event that the children [U], [V], [W], [X] and [Y] remain living with the father in Adelaide, the said children shall spend time with the mother as follows:
a)During each short mid-term school holiday period, as gazetted by the South Australian Education Department1 for a period of 10 days commencing on the first Saturday of the said holiday period and concluding at no later than 6:00pm on the second Tuesday of the said period:
b)During the Christmas school holiday period in 2022 and each alternate year thereafter, from no later than 6:00pm on the fourth Saturday of the said period until no later than 6:00pm on the last Saturday of the said period;
c)During the Christmas school holiday period in 2023 and each alternate year thereafter, from no later than 6:00pm on the first Saturday of the said period to no later than 6:00pm on the fourth Saturday of the said period: and
d)During any other time that the mother travels to Adelaide for a maximum of one week during any given visit, with the mother to provide the father with notice of her intention to visit Adelaide no less than 21 days prior to the said visit.
9.In the event that the children are living in the mother's primary care, that the children communicate by Facetime or telephone with the father at such days and times as agreed between the parties, and in default of agreement, as ordered by this Honourable Court.
10.In the event that the children are living in the father's primary care,that the children communicate by Facetime or telephone with the mother at such days and times as agreed between the parties, and in default of agreement, as ordered by this Honourable Court.
11. That the father be restrained and an injunction be hereby granted restraining him from:
a)Discussing these proceedings or any issues arising out of these proceedings with or in the presence of the children.
b)Denigrating, criticising or abusing the mother to or in the presence of the children.
12. Such further and other orders as this Honourable Court deems fit.
THE INDEPENDENT CHILDREN’S LAWYER’S POSITION
In the Outline of Case document filed by the Independent Children’s Lawyer on 12 September 2022, the Independent Children’s Lawyer stated that a settled view could not be submitted to the Court until each of the parties had given their evidence.
On the basis of the information presented at Trial, the Independent Children’s Lawyer considered that if the children were to remain residing with the father in Adelaide they would “struggle to maintain any sort of meaningful relationship with the mother”. It was submitted that the children would however be able to maintain a meaningful relationship with the father should they live with the mother in Victoria.
The Independent Children’s Lawyer submitted that provided the mother was able to satisfy the Court that she was able to care for the children in a way that protected them from harm and risk of harm, then the Independent Children’s Lawyer’s position was to support orders that the children live with the mother in Victoria and spend time with the father in Adelaide.
It was further submitted that in the event that the father relocated to Victoria, the Independent Children’s Lawyer would promote a “more comprehensive time spending with the father, and potentially even an order that the children should live with the father and spend time with the mother”.
BACKGROUND
The father was born in 1986 and at the date of Trial was 36 years of age.
The mother was born in 1988 and at the date of Trial was 34 years of age.
The parties have six children of their relationship, namely:
(1)U (‘U’) born in 2012, aged 10 years at the date of Trial;
(2)V (‘V’) born in 2015, aged seven years at the date of Trial;
(3)W (‘W’) born in 2016, aged six years at the date of Trial;
(4)X (‘X’) born in 2017, aged four years at the date of Trial;
(5)Y (‘Y’) born in 2019, aged three years at the date of Trial; and
(6)Z (‘Z’) born in 2021, aged approximately 10 months at the date of Trial.
The parties were never married. They lived in a de facto relationship which commenced in 2011. The parties separated on 5 July 2021.
The father was born and grew up in Country K. Due to the ongoing civil war in Country K at the time, he spent many years in Country L as a refugee.
The father migrated from Country L to Australia in 2004.
The mother was also born in Country K. The mother suffers profound disabilities, which she sustained during her childhood whilst living in the Country K. The mother describes her disabilities as follows:
As a result of trauma during my childhood during the civil war in the [Country K], I have suffered significant hearing loss, and I do not speak or understand English. I speak [Language K], and rely upon my sister and brother in law to help me with negotiating with Government departments such as Centrelink. Due to my disability which involves a foot drop that causes me problems with mobility, and being profoundly deaf, I need the support and assistance of my family.[1]
[1] See mother’s Trial affidavit filed 30 August 2022 at [5].
As a result of her disabilities, the mother cannot drive a motor vehicle and requires care, which is presently funded by the National Disability Insurance Scheme (‘the NDIS’).
The mother migrated with her sister, Ms M (‘the mother’s sister’), to Australia from Country N in or about 2006.
The parties met at the O School whilst studying English and commenced their de facto relationship in 2011.
The parties conducted what might be described as “traditional roles” in their relationship. The father worked to provide financially for the family. He is also highly skilled having completed a number of qualifications and diplomas during the relationship, and whilst working and supporting the family. Due to his hard work, the father has been successful in securing employment as a support worker with Employer P. I assess the father as being very proud of his academic accomplishments and employment.
The mother has devoted herself to the family. Due to the mother’s hard work, the parties have had and are raising six young children in the absence of any extended family support in Adelaide. The only family in Australia are the mother’s sister, her husband and their seven children living in Melbourne. The mother’s evidence was that her own mother would shortly move to Australia from Country N although I am unable to place any weight on this evidence in the absence of corroborative material.
I accept the mother’s evidence that the father’s absence from the home due to work and study and the lack of immediate family support, lead the mother to feel lonely and socially isolated in Adelaide. These issues became what could be described as a “festering sore” between the parties. The mother attempted to separate from the father on at least two occasions during the relationship and sought to remain in Melbourne with her sister. On each occasion, for reasons that were not fully ventilated in evidence, she chose to return to the father and live in Adelaide.
In July 2021, the mother travelled with the five eldest children to Melbourne, Victoria. The father’s case is that two weeks prior to the commencement of the July 2021 school holidays, the mother approached him when he came home from work one afternoon. The mother stated that she wanted to visit her sister in Melbourne with the children for a period of two weeks, then fly back with the children to Adelaide a few days prior to the commencement of the next school term. The father agreed and drove the mother and the children to Melbourne, arriving on 3 July 2021. The father then travelled home to Adelaide by himself, expecting the children to return prior to the commencement of the new school term as agreed.
The mother’s case is that she wanted to leave the relationship and had no intention of returning to Adelaide with the children after the father dropped her and the five eldest children of the relationship in Melbourne. The mother wanted the support of her sister and brother in law and to remain living in Melbourne close to her extended family. The mother conceded that she did not tell the father of her intention to separate, believing that if she did so the father would not have facilitated her travelling to Melbourne and that she would then have been “trapped” in Adelaide.
The father commenced proceedings in the Federal Circuit Court of Australia (as it then was) on 4 August 2021, seeking a Recovery Order for the five eldest children of the relationship. At the time the application was filed, the mother was pregnant with the youngest child of the relationship, Z.
On 1 December 2021, the Court heard interim argument in relation to the father’s application for the children to return to Adelaide. The Court’s orders from that day are as follows:
1.By no later than Monday 6 December 2021 by 5.00pm the mother or her agent do deliver up the children, [U] born [in] 2012, [V] born [in] 2015, [W] born [in] 2016 and [X] born [in] 2017 and [Y] born [in] 2019 at the [Suburb B] Police Station situated at [Q Street, Suburb B], in Melbourne in the State of Victoria.
2.In the event that the mother fails to comply with the delivery up order in accordance with paragraph 1 herein then pursuant to Section 67Q of the Family Law Act 1975 (as amended), a Recovery Order do urgently issue authorising/directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:
a.to find and recover the children [U] born [in] 2012, [V] born [in] 2015, [W] born [in] 2016, [X] born [in] 2017 and [Y] born [in] 2019; and
b.to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the children may be found; and
c.to deliver the children to the father [Mr Mamat] at such a place as the father and the person effecting such recovery agree to be appropriate.
3.During the period of the adjournment, and in the event that the mother elects to remain living in Melbourne, Victoria, then and in that event:
a.        The said children do live with the father;
b.The said children do communicate with the mother, each Monday, Thursday and Sunday at 5.00pm SA time on such electronic medium as the parties agree.
4.By consent, in the event that the father is the primary care giver to said children in accordance with paragraph 3(a) it be a condition of the father’s order that he not engage in full time employment whilst the said children are in his care.
5.In the event that the mother elects to return to reside in Adelaide, then the mother have sole use and occupation of the former matrimonial home situated at [R Street, Suburb S] in the State of South Australia, and:
a. The father shall immediately vacate those premises upon the mother’s return to Adelaide but be at liberty to attend at those premises as may be required to transport the children to and from school during each school term; and
b.        The said children do live with the mother;
c.During school terms, the said children spend time with the father each weekend from the conclusion of school Friday, or 3.00pm in the event of a non-school day, until the commencement of school Monday, or 9.00am in the event of a non-school day;
d.During school holidays on a week about basis such time to commence at 5.00pm Friday on the first week of such holiday period;
e.        At such other times as agreed between the parties;
f.Any handover not occurring at the said children’s school, being the [G School] at [Suburb T], do occur at the said former matrimonial home, or such other place as may be agreed; and
g.The mother be restrained and an injunction be granted restrained her from changing the said children’s principal place of residence from the metropolitan area of Adelaide.
6.Without admission, each of the parties be restrained and an injunction be granted restraining them from denigrating the other party or any member of the other parties’ family or friends in the presence the said children.
Subsequent to the orders being pronounced, the mother elected to continue living in Melbourne and not return with the children to Adelaide. The mother’s case is that she feared returning to Adelaide believing that the father would apply pressure for her to again stay in the relationship. The mother therefore chose to remain in Melbourne away from the father’s alleged influence. I assess that the decision to remain separated from the children and not being able to perform a role which culturally and historically had been performed largely by her, has caused the mother deep grief. Her decision to remain in Melbourne pending a determination at Trial reflects the mother’s strongly held view that she will not return to live in Adelaide under any circumstances.
The father arranged to collect the children from Melbourne on 23 December 2021. Unfortunately, there were issues with the handover of the five children to the father on that day. The three youngest children were handed over the father, but not the eldest two children, U and V. The father left Melbourne with the youngest three children and thereafter sought for the Court to execute the Recovery Order contained in the orders of 1 December 2021 to retrieve the two eldest children. The mother argued that that the difficulties at handover arose because the children U and V wished to remain in Melbourne living with her.
The two eldest children, U and V, were returned to the father on or around 15 January 2022. The five children have remained living with the father in Adelaide up to the date of Trial. The child Z was born in Melbourne post separation and has continued to live in Melbourne with the mother. It is an agreed position that the child Z has had limited interaction with the father since his birth.
THE EVIDENCE
The father
The father adopted the evidence set out in his Trial affidavits and gave brief updating evidence in chief.
At Trial, the father was remained employed as a support worker having worked in this sector for almost 10 years. The father stated several times in his evidence that he became a support worker due to his experiences in supporting the mother. The father had previously been employed in a full time capacity but had reduced his hours of work to permanent part time after the five eldest children came into his care pending Trial.
The father deposed to working Monday, Tuesday and Wednesday of each week and every second Sunday from 7:00am to 3:00pm. This roster was different to the work arrangements across most of 2022 when the father had worked Monday to Wednesday inclusive of each week 3:00pm to 11:00pm and occasionally on weekends. The change of roster was precipitated by the children arriving at school late across 2022 due to the father getting to bed late on those evenings after work. The father was candid when he stated in his evidence that he had “struggled” across 2022 in working and caring for five children with only modest community support and afterschool care.
The father gave his evidence earnestly. I assess the father as a highly motivated and hardworking individual. It became evident during the father’s oral evidence that, to his credit, he has achieved a number of qualifications namely:
(1)A Diploma in Allied Health;
(2)A Diploma in Counselling;
(3)A Certificate 4 in Allied Health;
(4)A Diploma in Community Services;
(5)A Diploma in Working with Children, Youth and Family; and
(6)A Diploma in Counselling.
In addition to his studies, the father has worked during the relationship. There is no dispute that the father has been the sole breadwinner for the family. The father did not deny that the mother had been the primary caregiver for the children, adding that he assisted in their care when he was not otherwise working or studying. Both parties supported the children receiving a good education with the father’s salary ensuring the children attended a local private Catholic school.
The father’s work commitments and the demands this brought upon the family were consistent themes in each parties’ evidence. The father deposed in his Trial affidavit that approximately one year prior to the final date of separation, the mother commenced requesting that he reduce his hours at work, especially active night shifts.[2] The father contended that he had been unable to reduce his number of night shifts due to his contract as a support worker and in order to attract the higher penalty rates that came with working overnight. The father further deposed that the mother complained of being lonely at home with the children when the father was at work.[3]
[2] See Trial Affidavit of the father filed at 4 August 2022 at paragraph 15.
[3] Ibid at paragraph 17.
It may in hindsight be a matter of regret for the father but his failure to address the mother’s stated concerns resulted in her ending the relationship and then refusing to return to Adelaide.

As set out above the father is highly qualified. He continues to reside in the same rental accommodation occupied by the parties during their relationship. Given his qualifications and work history, it was put to the father that he could work in Victoria if the children were ordered to reside there. The father did not deny this in his oral evidence but stated that he would need to leave his employment and “start from zero”. In this sense, it could be argued that the father is prioritising his own career over his ability to be involved with the children if they are ordered to live in Melbourne.
In response to a question put by the Court, the father confirmed that he would not move to Victoria to be closer to the children if they were ordered to live with the mother. The father stated that he had “no intention” of moving to Victoria. Despite there being a number of options available to the Court at the end of Trial, the father claimed he had not considered this as an option. The father considered that moving closer to mother and her family in Victoria would create a “toxic environment”. The father had made no effort to look at employment options in Melbourne or investigate schools for the children.
The father agreed under cross examination that the mother would be able to care for the children with the assistance of funding from NDIS. The father replied “one hundred percent NDIS would be enough. It doesn’t matter if it is here or in Melbourne. She will have support.” This was the situation that existed prior to separation albeit that the father was present to assist when his work and study commitments allowed it.
Whilst the father did not consider that the mother’s sister and brother-in-law would be in a position to offer extensive support, he did concede that they would be present and available to assist the mother if required. I observe that these family members have supported the mother through the currency of the proceedings and were present at the time of the Family Report interviews and the Trial.
The father conceded that he has also required support in caring for the children since separation. The father has engaged a family friend by the name of “Ms AB” who attended at the home to care for the children whilst he was at work. As already referred to herein, the father accepted that the three eldest children had been late to school in 2022 because the father was, in his words, “struggling” to facilitate the childrens’ attendance at school on time in the mornings. The father conceded when put to him by mother’s counsel that the child W was late to school on 47 occasions in 2022, the child V late on 46 occasions and the child U late on 43 occasions across the same period.
In the period leading up to Trial, the father had made arrangements to change the shifts so that he was available to the children after school and would make arrangements for another family friend to take the children to school in the mornings.
The father was challenged about the orders he proposed relating to the youngest child Z. The father conceded that he sought that the child Z live with him from the age of three years, acknowledging that, at Trial, the child Z was “too young” and because the child was still being breastfed by the mother. My impression of the father’s evidence was that he underestimated the impact on the child Z if he was to be removed from the primary care of his mother and placed into primary care of his father at age of three years as the father sought at Trial.
Significantly, the father acknowledged it was important for all six children to be together as much as possible. I assess the father’s proposal for the child Z as an acknowledgment by him of the likelihood that the Court would ultimately support all six children living together in one family unit.
The father was cross examined regarding the content of the Family Assessment Report. The father conceded having informed the Court Child Expert that he wanted the mother to return to reside in Adelaide and that he was hoping for a reconciliation. The father acknowledged telling the Court Child Expert that the eldest children were missing their mother but added “in the same way they are missing me.”
The father conceded that the mother is illiterate and is able to read what he described as “very basic Language K”. The parties currently only communicate via video calls as the mother is able to lip read. The father appeared not to acknowledge the difficulty the children experience in communicating with the mother via video calls. The father described the eldest child U being able to use hand signs to communicate with her mother and being able to interpret what the mother was saying to the other children. The father conceded that during the period when the mother was living in Melbourne and the children in Adelaide, the mother would often become emotional during the video calls. Otherwise, the father’s evidence is that such video calls had proceeded well.
The father was challenged regarding paragraph 37 of the Family Assessment Report wherein he had acknowledged to the Court Child Expert that culturally the mother was responsible for raising the children in Country K communities. The father resiled from this statement in the witness box, stating that this situation only applied if the parties had been living in Country K but now they are living in Australia. The father stated it was the now the responsibility of both parties to raise the children.
The father alleged that the mother displayed anger towards him and had mental health problems. Both parties made allegations against the other in relation to behaviour which would constitute ‘family violence’ within the definition as set out in section 4AB of the Family Law Act 1975 (Cth) (‘the Act’). However, in circumstances where the parties are consenting to a final order for equal shared parental responsibility and extended school holidays with each parent, the Court does not consider that the allegations made by each party with respect to conduct or mental health need to be weighed for the purposes of determining the primary residence of the children. Furthermore, the mother’s alleged mental health problems were not so great as to undermine her role as the primary caregiver to five children during the relationship.
The father was asked about arrangements for time spending between the children and the mother if the children were ordered to remain living in Adelaide. The father offered for the mother to stay in former matrimonial home, and in the alternative, if he could afford to do so, he would assist the mother in finding other accommodation. The father conceded it would be more difficult for mother to travel to Adelaide and that she would need additional support due to her disabilities and transport issues noting that the mother is unable to drive a motor vehicle. The father maintained an offer to financially support the mother if she travelled to Adelaide to see the children although the exact quantum was never explored with him under cross examination.
The father agreed that at the date of Trial, he had no relationship with the child Z and that it would take time for the child Z to settle into his care given the child’s age and the distance between the child’s primary home and the father.
Regrettably, none of the factors identified above lead to the father having a change of heart as to where he would reside in the future. From the father’s point of view, it was Adelaide or nothing.
The mother
The mother relied upon her Trial affidavit and gave no further evidence in chief.
The mother gave her evidence with the assistance of her sister, Ms M, and brother in law, Mr AC. Ms M and Mr AC were each sworn in to interpret the mother’s evidence accurately. The Court was satisfied that this unique arrangement was not prejudicial to the integrity of the mother’s evidence and the father consented to it. The father understood the mother’s evidence. The father was observed to take notes during the mother’s testimony as the Court permitted the father to sit next to his counsel during this tranche of the Trial. On several occasions, the father sought to correct the interpretation given by the mother’s brother in law on the mother’s evidence via his counsel which was permitted by the Court.
As a result of trauma experienced by the mother as a child during the civil war in Country K, the mother has a number of disabilities. The mother is deaf and does not speak or understand English. The mother can speak in basic Language K using her own form of sign language which is understood only by her sister, brother-in-law and the father. The mother also has difficulties with mobility due to a “foot drop”. The mother does not drive and is reliant on others for transport.
The mother has no extended family support in Adelaide. Her sister and brother-in-law and their seven children of varying ages between 15 and two years of age live in Melbourne. The mother alleged that her mother would be arriving imminently from Country N although no independent evidence was put before the Court to verify this. The mother’s evidence was that her mother’s Visa was in its final stage and she hoped that the maternal grandmother would live with her and the children in Melbourne following her entry into Australia.
The mother deposed in her Trial affidavit to feeling “very isolated and lonely in Adelaide, caring for the children.”[4] The mother complained that the father prioritised his work and that her sister, Ms M would travel to Adelaide as required to provide support.
[4] See Trial Affidavit of the mother filed at 30 August 2022 at paragraph 9.
Under cross examination, the mother denied that during the relationship the father would assist in the care of the children and complained that the father “never stopped working” and would work “up to seven days per week”. The mother denied that the father had taken the children to medical appointments complaining that she was required to find alternate arrangements if the children needed to attend upon a medical practitioner.
The mother denied when challenged by father’s counsel that the father would assist in taking the children to and collecting them from school. The mother stated that the father was “always busy”. It was the mother’s evidence that the NDIS worker assisted with the transport to and from school, not the father. The mother did agree that the father would organise taxis if required for transport.
The mother complained about the father’s conduct towards her including allegations of financial control and assault. However, for reasons stated herein, the Court has not been invited to make findings with respect to family violence. The parties are consenting to final orders for equal shared parental responsibility and extended school holidays. The Court is entitled in those circumstances to infer that the complaints about conduct are not such as to prevent either parent from being a support worker to the children.
It was the mother’s stated position at Trial that she will not to return to reside in Adelaide fearing that the father will attempt to force a reconciliation of their relationship. The depth of the mother’s opposition to returning to Adelaide is evidenced by the fact that she has not done so since orders were made returning the children to Adelaide on 1 December 2021.
At the time of Trial, the mother was living in rental accommodation provided by the Department of Human Services. The accommodation comprised four bedrooms equipped with sufficient bedroom space for herself and the said children in Melbourne. At Trial, the mother stated that her current accommodation is available for the next two years and thereafter H Services would assist her to find other alternate accommodation.
The mother has also engaged with the NDIS in Melbourne, and is receiving support from J Support Services and H Services. The mother deposed in her oral evidence to having three support workers for 12 hours per fortnight who assist with daily living tasks and whom would also be able to assist the mother in caring for the children as required including after school and in school holidays. I accept the mother’s evidence that the level of support she receives is dependent on the number of children living with her full time. The mother’s evidence was that she anticipated receiving between four to five hours of assistance each day if the five eldest children were returned to her primary care. Correspondence confirming the support provided to the mother from H Services Victoria and J Support Services are set out in Exhibit numbers M6 and M7 respectively.
The mother confirmed in her oral evidence that she had no intention of returning to Adelaide, stating that she had no family support. It is the mother’s proposal that she remain living in Melbourne with the child Z, and if successful, for the eldest five children to join her and Z in Victoria. The mother described her return to Adelaide as being “simply not an option for me… where I will be socially isolated.”[5]
[5] Ibid at paragraph 71.
The mother’s evidence was that her sister lived only ten minutes’ drive from her home in Melbourne. Given the proximity of their residences, the mother’s sister visits each day. The mother proposed that if possible the children attend at a local Catholic school if placed in her full time care. Her sister’s children attend AD School and AE School respectively. The mother agreed that she had made no formal applications for the children to attend at any school in Melbourne pending the outcome of the Trial.
The mother stated that if the children attend a private Catholic school in Melbourne that she would meet their educational expenses. No evidence was put before the Court on this topic.
The mother conceded at Trial that the father pays $171.00 in child support per month for the child Z.
The mother maintained that the father has employment skills that are easily transferable and that he would be able to find comparable employment in Victoria should he decide to relocate so as to be close to the children. The mother confirmed in her oral evidence that she thought the father would follow her and the children to Melbourne once she stated a clear intention not to return to Adelaide. To this extent, both parties have harboured hopes that the other parent would relent if the current impasse continued long enough. To date, neither has done so.
The mother conceded that her sister had verbally remonstrated with the father at handover on 15 January 2022 when the father had travelled back to Melbourne to retrieve the two children who had not been returned to him on 23 December 2021.
The mother denied referring to the father as a “bad man” or “useless person” to the children. The mother denied any suggestion that her sister had stated to the child U that the father had sexually assaulted the mother and that she should therefore live with the mother.
In response to a question put by the Independent Children’s Lawyer, the mother stated that the longest time the child Z had not been in her care was during the period of observed interaction with the father for the purposes of the Family Assessment Report.
The mother agreed in her oral evidence that the parties should share the cost of transporting the children between Adelaide and Melbourne with the father to be responsible for collecting the children in Melbourne and mother to bear those costs in collecting the children from Adelaide. No evidence was provided as to the quantum of such costs. The likelihood is that the mother will be reliant on Centrelink benefits given her health issues, lack of English and being without any formal qualifications. Alleging that the children are afraid of travelling by aeroplane, it was the mother’s preference that any transport be undertaken by motor vehicle.
The mother conceded that at present the parties do not communicate directly with each other. In future, the mother would propose that the parties communicate in writing with the mother stating that she would seek the assistance of her sister and brother-in-law to interpret such written communication as required.
Ms D
Ms D relied upon her Trial affidavit.
Ms D is a friend of the mother and deposed to having known her since approximately 2012.
The father’s counsel challenged the witness on several occasions contending that Ms D and the mother had only commenced a friendship in 2019. Ms D was unwavering in her evidence that she had been a friend of the mother’s for nearly 10 years in Adelaide.
Ms D’s affidavit sets out her involvement with the family deposing to the fact that she would provide frequent assistance to the mother with transport and assisting the mother with the care of the children. The father’s counsel took issue with the evidence of Ms D wherein she alleged that the father had become angry with her after she criticised the father for being absent from the home and not assisting the mother with parenting of their five children.
Ms D’s evidence, which I accept, was that she had challenged the father and that he was offended, complaining that she was attempting to interfere “with his family”. Ms D stated that the father then told her not to return to the home. Thereafter, Ms D would visit the mother and the children when the father was absent from the home to avoid any further confrontation.
Court Child Expert Ms E
Ms E is a Court Child Expert employed by the Court. For the sake of ease, I will refer to Ms E as the Court Child Expert for these reasons.
The Court Child Expert prepared a Family Assessment Report dated 18 May 2022 (‘the Family Report’). The Family Report involved interviews with each of the parents and the subject children who were of an age appropriate to be interviewed, together with observed interactions of each of the parents and the children. The mother was assisted at interview with translation provided by her brother-in-law, Mr AC, and her sister, Ms M.
At the dates of interview, each of the parties’ proposals were consistent with their applications before the Court, save and except that the father proposed spending time with the youngest child Z on one occasion per month.
In paragraphs 27 and 28 of the Family Report, the Court Child Expert identified the following issues:
(1)The care and time spending for the five eldest children and whether they live with the father or the mother;
(2)Time spending with the other parent who does not have primary care;
(3) The impact on Z being separated from his siblings;
(4)The children’s wishes to spend more time with their mother and Z; and
(5)The absence of communicate (sic) between the parties as an issue and whether each party has the capacity to promote a meaningful relationship with the children and the other party.
During his interview, the father confirmed that, in his opinion, during the period when the children lived in Victoria with the mother in 2021, including an extended period of lockdown, the children missed him and struggled emotionally. The father also identified concerns relating to the children’s academic progress given that the mother was unable to assist the children with home schooling because of her own difficulties.
The father was reported to explain that in Country K the gender roles are traditional.[6] The father stated that it is expected the women will nurture and care for the children whilst the men earn an income. The father went on to comment that in Country K his current situation in being the primary caregiver for five of the subject children would be seen as “wrong”.
[6] See the Family Assessment Report of Ms E dated 18 May 2022 at paragraph 37.
The father acknowledged that the children U and V were missing their mother and struggling emotionally because of the separation from their former primary caregiver. The father also observed that the child W
often asks when [Ms Sepri] is coming back and appears to miss her a great deal. W is reported to be dealing with missing her mother by withdrawing and [Mr Mamat] believes it is draining her emotionally.[7]
[7] Ibid at paragraph 39.

The father stated that the child Y had coped with the changes to his care “quite well” although Y was reported as being clingy at times.
Paradoxically, given the father’s application and the position taken by him at Trial, the father stated to the Court Child Expert:
I want the children to live with their mother as it is in their best interests, but allow me to support them.[8]
[8] Ibid at paragraph 41.
The father went on to observe that, in his opinion, he needed to support the children due to the mother’s disabilities. However, the father’s stated concerns are not such as persuade him to move to Melbourne where the children could live with the mother and have frequent time with him. In this sense the father could be said to “wanting his cake and eating it too.”
At interview, the mother confirmed the timeline of the parties’ relationship as reported by the father. The mother stated to the Court Child Expert, as she did in oral evidence, that the child U was born as a result of rape perpetrated by the father. The mother went on to report that she “thought that she needed to stay with Mr Mamat because she was pregnant to him” and further, that it had taken “a long time” before she had informed her sister of the alleged sexual assault.
The mother complained that the father had not assisted her with the care of the children during the relationship as he was always “busy”. Now that the parties had separated, the mother observed that she required her sister and Mr AC to be in close proximity so that they could provide physical and emotional support.
The mother confirmed that whilst in a relationship with the father they had traditional gender roles with the mother taking care of the house and children and the father providing financially for the family. The mother reported that in Country K culture, the women are seen as the head of the family and that children should always live with their mother until at least the age of 18.
The mother complained to the Court Child Expert that whilst living in Adelaide the father had deliberately isolated her from other members of the Country K community and had told people not to visit, confirming the evidence given to the Court by Ms D.
The mother alleged that since the children commenced living with the father, he continued to work night shift and that the children were left at home alone. The mother alleged that she was aware of this from other members of the Country K community, who informed her that the father continued to work night shift and because the child U communicated with a cousin via a game chat “AF” at 9:00pm at night on one occasion.
The mother asserted that the father continued to attempt to control her by insisting that any time spent with the children in Adelaide could only occur at the parties’ former joint residence. The mother went on to explain that in her opinion, the father is:
… using the children to draw her back into a relationship with him. She believes the children want to live in Melbourne with her and eventually [Mr Mamat] may allow them to live with her, but not until he realises she is not returning.[9]
[9] Ibid at paragraph 53.
The interviews with the children are summarised as follows:
The child U
U, aged 10 years, was reported as presenting as a friendly and charming young person, who underneath was lonely.
U told the Court Child Expert that she does not enjoy school “as she feels lonely”. U reported being teased about her appearance and explained that there are no Country K children in her year five. U also complained that there are no Country K friends outside of school.
U confirmed that whilst living with her mother in Melbourne, she missed her father and was bored, particularly during lockdown.
U acknowledged that she has difficulty communicating with her mother, a situation which is exacerbated when the children are forced to communicate with their mother via an electronic medium and not face to face. This was the only form of communication during the COVID-19 lockdown as state borders were shut.
U reported loving her father, but being angry with him, stating.
She said she feels as if he has taken away her mother from her and he says nothing when she says she wants to live with her mother. She acknowledged that she does believe her father wants her living with her mother, but he “says nothing”. She said she can tell her father she misses her mother, but “he doesn’t listen to me”. [10]
[10] Ibid at paragraph 59.
U described having a close relationship with Ms M, her biological aunt and Ms M’s husband, Mr AC. U stated that if she lived in Melbourne with her mother she would telephone her aunt, Ms M, and would hope to see her every day. Ms M has seven children, including a child aged nine years with whom U reported being particularly close to.
U denied that her father worked nightshift and reported that he had not worked overnight since 2021. U also denied feeling hungry and reported that the father provided “lots of food” in the home.
Finally:
[U] was clear with her stated wish of wanting to live with her mother she said she had told her father that she wants to live with her mother and believes her father wants her to live with her mother. She said she is not sure why it is not happening and asked the report writer if she was leaving with her mother after the Family Assessment. [U] was also clear that she has no preference for Melbourne or Adelaide, as long as she is with her mother.[11]
[11] Ibid at paragraph 63.
The child V
V, aged seven years, presented a “shy and sad young person”. V reported having “…one brown friend and a white skin friend”. He appeared pretty satisfied with his friendship group reporting that in Melbourne he felt like he had no friends. This is likely explained by the fact that the children were in lockdown whilst in the mother’s care across 2021.
V stated to the Court Child Expert that “… he really misses his mummy. He loves her very much”. Like his older sister, V reported having difficulty communicating with his mother given her situation. V was positive about his father’s parenting of him.
When asked about his living arrangements, V stated that he wanted his parents to live together. He reported that at the moment “his father loves his mother” and went on to observe that his mother “probably misses them all, but he was not really sure”.
The child W
W, aged six years, presented as a friendly young children who “had information she wanted to divest herself of”. W reported enjoying her school and having lots of friends.
As W entered the interview room, she informed the Court Child Expert “I know what your gunna (sic) ask me” and “I want to live with my mum”. W went on to confirm that telephone calls with her mother were difficult because “my mum does not understand what I say because she has a disability”. W stated that she does not like living with her father because she wants to live with her mother. W was unable to articulate the reasons for her expressed preference other than loving her mother very much. She informed the Court Child Expert that she was going to “follow her (Ms Sepri) home after the Family Assessment”.
The youngest children
The youngest children X, aged four year, Y aged two years and Z aged five months at the date of the interview, were not interviewed given their tender years.
Interactions with the parties
Each of the parties were observed by the Court Child Expert with the children.
The observed interaction between the mother and the children was said to be “chaotic at times” with minimal verbal exchange, save and except when the mother sang with the children. In her oral evidence, the Court Child Expert opined that the mother’s observed interaction with the children had taken place in a very small observation room, which may have explained the children’s presentation. Notwithstanding the children’s behaviour at times during this tranche of the assessment, the mother was observed warmly engaging with the children. The Court Child Expert noted that overall the children appeared to enjoy their time with their mother.
Concerns were raised, however, as to the mother’s capacity to meet the children’s needs for behavioural boundaries and emotional regulation given the children’s presentation at times.
The children’s presentation during the observed interaction with their father was reported as being “vastly different” than with their mother. Whilst the children initially appeared somewhat excited and hyperactive, the father was able to settle the children quickly and their responses to him were reported to be positive. The child Z was also included during the observed interaction. The child Z’s involvement in the interview was not without controversy. The mother was reported as being angry about the child Z spending time with the father, even in an observed capacity. In addition, the elder children were observed by the Court Child Expert becoming agitated when they saw their father holding Z and remonstrating with their father stating that “Z is not yours” and “mummy gave birth to him”.
Overall, the father was reported as managing his time with the six children.
Under the heading ‘Evaluation’ the Court Child Expert reports as follows:
88.This dispute centre's around whether the children [U], [V], [W], [X] and [Y] should remain living in Adelaide with [Mr Mamat] or relocate to Melbourne with [Ms Sepri]. [Mr Mamat] remains uncertain about his position with regard to [Z] but proposed that [Z] live with him at a later stage. [Ms Sepri] believes that [Z] should stay with her and have no contact with [Mr Mamat].
89.This matter has multiple layers of complexity including the trauma both parties experienced by being displaced from [Country K], [Ms Sepri's] vulnerable circumstances requiring NDIS and family support, the geographical distance between the parties and the associated financial burden of such travel, the likely loss of one relationship for the children of a parent and the counter allegations of violence which appears to have contributed to a lack of any real or meaningful co-parenting relationship.
90.The counter allegations of violence as well as the allegation of rape remain a matter for evidence. There does not appear to be any corroborating information with regard to the allegations of rape of [Ms Sepri] specifically, although in many cases this is not unusual and does not indicate it did not occur. The information provided by DCP indicates that an undisclosed female alleged that [Mr Mamat] raped them in 2006. No charges appear to have been made. The SAPOL information filed in these proceedings appears to provide some support for [Mr Mamat’s] allegations that [Ms Sepri] became angry and injured his arm.
91.This matter is about where the children will live. The first being the children remain living with [Mr Mamat] and the second proposal of the children living in Melbourne with [Ms Sepri]. Both parties' proposals present significant challenges for the children. Ideally, the parties would live in the same State. [Mr Mamat] stated that he cannot relocate to Victoria because his employment and career are based in South Australia, whilst [Ms Sepri] stated that Victoria is the only place where she has enough family and social support.
92.[Ms Sepri] alleged that just prior to the Family Assessment, [Mr Mamat] was obstructive in her spending time with the children. She alleged he was being manipulative in stating she could only see the children at his house. If [Ms Sepri's] narrative is accepted, it may provide some weight to the allegations that [Mr Mamat] is using the children to draw her back into the relationship. If [Mr Mamat's] account is accepted, then he became confused and worried that [Ms Sepri] would not return the children to him after time spending because the time spending was not Court ordered. [Ms Sepri] suggested that there may be a paper trail between the parties legal representatives, that may provide illuminating information with regard to what was and what was not arranged prior to her driving to Adelaide.
93.It will be a significant challenge for the children to have the opportunity to maintain a meaningful relationship with both parents, whilst both parties remain in different States. If the children reside in Adelaide with [Mr Mamat], their relationship with [Ms Sepri] will be challenged by the geographical distance and the large financial cost of travel between States and unsatisfactory social mediums. [Ms Sepri's] language barriers present an extra barrier to utilising FaceTime with the children, reducing communication in an already less than ideal medium for maintaining meaningful relationships. [Mr Mamat] on the other hand, would be able to communicate with the children via FaceTime as there are no presenting language barriers.
94.The parties' proposal mean that the children live in Adelaide or Melbourne. If the children remain in Adelaide, [Z]'s relationships with his siblings will undoubtedly suffer and be insufficiently developed. [Ms Sepri] proposed that [Z] have no contact with [Mr Mamat]. A parenting stance which fails to consider a child's best interests is problematic, and demonstrates limited insight into the children's developmental needs. [Ms Sepri's] reaction of trying to keep [Z] from [Mr Mamat] even spending an hour with [Mr Mamat] did not inspire confidence in her capacity to recognise the importance of [Z] having a meaningful relationship with [Mr Mamat]. The observation of [Z] with [Mr Mamat], was the first time [Mr Mamat] spend time with [Z].
95.[Mr Mamat] consistently impressed as attuned to [Z] and the children and demonstrated awareness of their developmental needs. [Mr Mamat] wants a meaningful relationship with [Z]. His proposal that the siblings live together eventually due to the importance of these relationships, impressed as child focused. [Mr Mamat's] views have merit with regard to [Z] and the sibling relationships. Sibling relationships are likely to be one of the most enduring of their lives and sibling relationships have a profound importance in their own right. They require significantly more scaffolding to be established and maintained however.
96.If the children moved to Melbourne to live with [Ms Sepri], their relationship with [Ms Sepri] would be maintained and their sibling relationship with [Z] would most likely flourish. There are the concerns that the children who were old enough to express their views, all said that it is hard to talk to [Ms Sepri] and she does not understand them. Their stated views are in the context of not having spent any time with her since December 2021 and trying to speak to her via FaceTime which is unsatifying due to [Ms Sepri's] deafness and spoken [K Language]. Whilst [Ms Sepri] did not raise this as an issue it raised the question of how the children can maintain a relationship with her by living separately. [Ms Sepri] communicates her love to her children through physical affection and through singing.
97.It appears apparent that the children will suffer the loss of a relationship with their mother, if they remain living in Adelaide with [Mr Mamat]. The children's relationship with their mother can only be guaranteed by living with her. It is not disputed that [Ms Sepri] was the children's primary caregiver prior to the parties' separation and up until December 2022. [U], [W] and [V] reported missing their mother and feeling a deep sense of loss. It is acknowledged that [U] and [W] both said they wanted to live with [Ms Sepri] in Melbourne. [V] was confused and essentially wanted his parents to reunite. It is not surprising that the children would feel confused by [Ms Sepri's] absence with respect to the separation, first from her, and now from [Z]. Whilst not mature enough to understand the ramifications of their decisions, all of the children are under the age of ten and their emotional wellbeing needs to be paramount. Their emotional wellbeing will most likely suffer from being separated from [Ms Sepri].
98.At interview [Mr Mamat] presented as child focused and this was consistent with his observed interactions with the children. There was warmth in both parents' interactions with the children. Unlike the observations with [Mr Mamat], the children became dysregulated which lead to some chaotic and risky play during [Ms Sepri's] observation. This resulted in [Y] crying and climbing things he could fall off of and [V] becoming angry, distressed and aggressive. In those instances it appeared that [Ms Sepri] was ineffective in containing the children's behaviour. Despite the more favourable observations for [Mr Mamat], [Ms Sepri's] observations were undertaken in a small cramped observation room and her hearing disability means that in some instances she will be unable to notice a child without facing them. If [Ms Sepri] was observed along with Ms M and Mr AC, then this would most likely have provided her with the necessary supports in alerting her to things she is unable to hear. It is also assumed that whilst NDIS support workers are with [Ms Sepri], they too can alert her to sounds coming from the children. [Ms Sepri] has access to multiple appliances in her home that alert her via vibrating and via flashing lights. She also has a breathing apparatus that sits underneath [X]'s mattress to alert her if [X] stops breathing.
99.[Ms Sepri] proposes that she have primary care of the children in Melbourne. Another transition for the children may cause them distress and perhaps even trauma. Being separated from [Ms Sepri] and losing their relationship with her may also cause them trauma. Whilst the younger children were not interviewed due to their young age, [Mr Mamat's] narrative suggested that all of the children currently have a predictable and stable routine with him in Adelaide. In Melbourne, [Ms Sepri] would be supported by NDIS workers for at least six hours of each day and have the support of [Ms M] and [Mr AC].
100.If the children remain living in Adelaide they will also be less able to spend time with their maternal family. [U] currently feels isolated from her cousins and feels lonely overall due to a lack of connection to her [Country K] culture through [Country K] friends her own age. To form positive self-esteem, children need to feel proud and respect their own families and cultures. She needs other to celebrate these key facets of her identity too. [U's] narrative suggested she felt isolated from her culture in many respects. If she were to live in Melbourne, she would be able to spend a large amount of time with her nine year old cousin and extended maternal family. [V] also aised the issue of having friends that looked like him as being important. If the children live in Adelaide, it may be beneficial for [Mr Mamat] to consider ways that the children can value and celebrate their culture with him.
101.When considering the parties proposals, it is important to consider the risk that the non residential parent will not facilitate time spending between the children and the other parent. Without being ordered to do so, [Ms Sepri] has been unwilling to allow [Mr Mamat] to spend time with [Z] thus far. If [Mr Mamat's] narrative is accepted, she has been unwilling to facilitate any time spending for [Z] with him and he remains concerned that [Ms Sepri] will keep [Z] from him long-term.
102.The best outcome in this matter would be for [Mr Mamat] to move to Melbourne. [Mr Mamat] has transferrable skills and works in an industry that has ongoing staff shortages. It appears likely that he would be able to obtain employment in his current profession. [Mr Mamat] is physically more mobile and has less support requirements than [Ms Sepri], in that he does not require close family support like [Ms Sepri] does. [Ms Sepri] is unable to receive as much support in Adelaide, as she receives in Melbourne.[12]
[12] Ibid at paragraphs 88 – 102.

Section 60CC of the Act sets out two classes of considerations which apply to the Court’s determination as to how a child’s interests will best be served. They are described as ‘primary considerations’ and ‘additional considerations’.
The two primary considerations in s 60CC(2) are as follows:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse and neglect or family violence.[31]
[31] Ibid s 60CC(2).
Section 60CC(2A) of the Act directs the Court that in applying the primary considerations, to give greater weight to section 60CC(2)(b) which is the primary consideration directing the Court to protect children from physical or psychological harm, or from being subjected to or exposed to neglect, abuse or family violence.
Section 60CC(2)(a) – the benefit to the child of having a meaningful relationship with both of the child's parents
The benefit to the children in having a meaningful relationship with each of their parents is a central issue in this case. Each of the parents have different but equally valuable qualities which will aid the children as they grow older. The father provides more structure and discipline and with an emphasis on education and future opportunities. The mother’s parenting qualities are more nurturing and emotionally based.
In an ideal world the parents would live in a close proximity to one another thus ensuring the children’s maximum exposure to the benefits each of the parents can give them. Unfortunately that is not possible for these children. Each of the parents have resolutely maintained that they will not move from their current locations. For his part, the father will not countenance a move to Melbourne which will mean leaving his current accommodation and changing of jobs. This is despite my assessment of the father as an extremely resourceful, highly qualified and hardworking individual. On the other hand, the mother’s refusal to move back to Adelaide is evident by her remaining interstate even after the children were ordered back to South Australia pending Trial. Being separated from the children has been a source of great distress to the mother as evidenced by her presentation in the witness box. Despite this, the mother declined to return to Adelaide allegedly fearing that the father would attempt to reconcile with her and with the mother being without family support.
In circumstances where the parties can, as private individuals choose to live wherever they wish, the Court is left with no alternative but to make a very difficult decision in the best interests of the children. As already stated herein, this will no doubt leave one party feeling as if one is the winner and the other, a loser. As the children will be in the care of one parent interstate a meaningful relationship with the other can only be maintained through extended school holidays, regular FaceTime or video calls and on any occasion that travel can be undertaken during school terms.
Section 60CC(2)(b) – Need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The Court does not consider that this is a relevant consideration to bring to account in weighing up the primary considerations for the children. Whilst each of the parties alleged neglect of the children whilst in the care of the other post separation, those matters were only faintly pressed under cross examination. The final consent order for equal shared parental responsibility, extended school holidays and offers of shared care if one parent moved closer to the other, lead the Court to conclude that this subsection is of much lesser significance than the need to consider the benefit of the children having a meaningful relationship with each of their parents. Furthermore, the Court can infer that those allegations are of not sufficient weight so as to cause one or other of the parties to move closer to the children to ameliorate any risk.
Section 60CC(3) – Additional considerations
In considering the additional considerations pursuant to section 60CC(3) of the Act, the Court brings to account the following.
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The six children are aged between ten years and ten months at the time of Trial. It is not suggested by either party or the Independent Children’s Lawyer that significant weight can be attached to the children’s views as expressed to the Court Child Expert when interviewed for the Family Report.
The children’s views are one of many factors to be brought to account in determining on a final basis their best interests.
The three children who were interviewed, being U aged ten years, V aged seven years, and W aged six years, all reported missing their mother. The children U and W stated that they wanted to live with their mother. The child V wanted his parents to live together.
(b) the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child);
The five eldest children all have close and loving relationships with their parents. The child Z’s relationship with the father is almost non-existent. The Court Child Expert is of the opinion that in time this relationship will strengthen as the child Z is able to spend more time away from the mother and in the father’s care in the company of his five older siblings.
The mother will reside in Melbourne close to her sister, brother in law and their seven children. At Trial, the father did not take issue with the mother’s evidence that the children have a good relationship with their extended maternal family and enjoy the company of their cousins.
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long‑term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child
There is no dispute that the mother has historically been the children’s primary care giver and in the case of the child Z, has been his only caregiver. The father has cared for the eldest five children with assistance from community members and friends since coming into his primary care pending Trial.
Each of the parties have sought to spend time and communicate with the children to the extent possible at any given time and given the children’s age and stage of development. The father is very keen to commence time spending with the child Z but acknowledged that the child’s needs required special attention given that he is still an infant.
I accept that the father has historically played a more active role in relation to the children’s education. This came about due to a combination of the mother’s physical difficulties and because the father has a strong interest in the children’s education. Each of the parties have a genuine interest in the children’s health and functioning and have discharged those responsibilities as required.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
Each of the parties have maintained the children to the extent required during their periods of care of the children. The Court is confident that the father as the only employed parent will utilise, if necessary, his resources to maintain the children financially into the future especially if it assists the children with their education. The father is paying child support for the child Z as assessed.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
A change of living arrangements for the five eldest children to the mother would necessarily bring about a change of circumstances. The children would need to move from Adelaide to Melbourne and attend another school. However, the children would be returning to the primary care of their mother, the parent who had the primary care of each of the children until the date when the children were ordered back to reside in Adelaide pending Trial. The three eldest children all expressed to the Court Child Expert that they missed their mother and the children U and V expressed a wish to live with her.
The likely effect of a change to the five eldest children is assessed as being minimal when seen in the context of the children returning to the care of their mother.
There will be no likely effect of any change for the child Z as he will remain living with the mother and now have the benefit of contact with his five siblings in the same home. Any such effect on the child Z is therefore likely to be positive as he will now be surrounded by siblings.
The Court accepts that the children may miss their father. The child U reported to the Court Child Expert that she missed her father when in “lockdown” in the mother’s care across 2021 in Melbourne. Unfortunately the parties polarised positions at Trial make it impossible to craft Orders which would see anything other than school holiday time, regular FaceTime calls or visits if one parent travels interstate. The children will at least be able to communicate with the father on FaceTime without difficulty. The same cannot be said for the mother.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The parties competing proposals for the children to live in one State while the other parent lives another brings this consideration into stark focus. Regrettably, there are no other options. Each of the parties put forward proposals which will see the children travelling between South Australia and Victoria for time spending. There was no evidence at Trial as to the future expense associated with time spending. The Court would infer that this is because each of the parties are accepting that long distance travel and cost are the necessary corollaries of their mutual decision to live hundreds of kilometres away from each other. The father has a motor vehicle and a driver’s license. The mother does not. The reality of the situation is that the father will be required to undertake transport associated with time spending in those circumstances.
(f) the capacity of (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs
Each of the parties have the capacity to provide for the children’s daily physical needs.
The mother has a demonstrated history of providing for the children’s needs following birth. The mother was the undisputed primary carer during the parties relationship. It is a role that she considers duty bound in her culture to fulfil.
I assess the father as having the greater capacity to provide for the children’s intellectual needs. The father does not have the same physical disabilities as the mother and can read English. The father has achieved a great many diplomas in order to improve himself and to better his job opportunities.
Both parties present as wanting their children to receive a good education. The father would propose continuing the children’s attendance at G School. The mother gave evidence that she had not enrolled the children at any school in Melbourne pending the outcome of the Trial. Her oral evidence confirmed an intention to enrol the children in a local Catholic school if successful. The Court is satisfied that appropriate arrangements will be made in relation to the children’s future education by each party.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The children are of varying ages from ten years to ten months at the time of Trial. They are still very young children who are highly dependent on their care providers. Culturally the family identify as Country K with the parents moving to Australia as refugees. Evidence was given by both parties that in Country K culture, the responsibility for child rearing falls to the mother. I assess the mother as being aggrieved during her evidence that she has been prevented from performing this role by the father since she moved to Melbourne and he refused to follow.
(h) if the child is an Aboriginal child or a Torres Strait Islander child
Not applicable.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The Court accepts that each of the parties have demonstrated a proper attitude and commitment to the responsibilities of parenthood for the children. Parental responsibilities are varied in their nature and can range from emotional or physical support through to ensuring that the children’s educational needs are met or food put on the table. Each of the parents in this case have different strengths which compliment the other. The Court is confident that each of the parties will continue to discharge those responsibilities to the best of their ability moving forward.
(j) any family violence involving the child or a member of the child’s family
Both parties have made historical allegations of family violence against each other. In circumstances where the parties join in consenting to final orders for equal shared parental responsibility and time spending for up to three consecutive weeks during the Christmas school holidays, the Court does not consider that it is necessary to make findings of family violence as such findings are not necessary in determining the children’s best interests. Neither party’s counsel nor the Independent Children’s Lawyer addressed the Court in relation to this subparagraph and therefore the Court does not consider it relevant to making orders in the best interests of the children.
k) if a family violence order applies, or has applied, to the child or a member of the child’s family -any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
Not applicable.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The Court accepts that it would be preferable to make an order that would least likely lead to the institution of further proceedings. However, given the sheer number of children in this family and the distance between the parties respective residences, this may not be achievable. It is also possible that the father may have a change of heart and move closer to the mother’s residence in Melbourne. The Court declines to make prospective orders in the event the father at some indeterminate date moves closer to the children. If and when this occurs, the Court will consider, at that point in time, orders which best meet the children’s interests.
(m) any other fact or circumstance that the court thinks is relevant
In final submissions, the Independent Children’s Lawyer raised a concern about the mother’s ability to support the children’s relationship if all six children were to live in her primary care. The evidence supports a finding that to date the mother has been reluctant to encourage the child Z to see his father. However, the mother’s attitude must be seen in the context of the child Z being born after separation and only shortly before the eldest five children were returned to Adelaide by Court order pending Trial.
The Court Child Expert also expressed a reservation about the mother’s attitude. It was her assessment however that once the proceedings had been concluded then the parties should be able to move forward with the certainty of final Court orders.
The Court accepts the Court Child Experts evidence on this topic. The mother is bound by orders to promote the children’s ongoing and meaningful relationship with the father. The mother should understand that in such a finely balanced case, the Court expects adherence to orders by the parent who has the overarching responsibility in supporting the children’s relationship with the other parent.
CONCLUSION
As has already been observed by the Court in these Reasons, it is regrettable that the parties cannot agree to live separately in the one State, whether that be South Australia or Victoria. Such an arrangement would have provided the best of all outcomes for the six children. Each of the parties are able to offer complimentary but different experiences to assist the children to reach their full potential.
In the absence of any such concession, the children can only live with one parent and spend time with their non-primary parent in a manner which maximises the need for the children to maintain a meaningful relationship with the other.
For the Reasons set out herein, the Court has come to the conclusion that the children’s best interests are served by living with their mother and spending time with their father. The Court Child Expert could not countenance any scenario where the child Z would move to live with the father. The parties and the Independent Children’s Lawyer all agree that all six children should live together. This is reflected in the orders sought by each of them at Trial.
It is surprising therefore that greater attention was not given to the issue of the child Z’s care arrangements during the Trial. The Court is left to exercise its discretion in relation to the child Z as best it can in the absence of any realistic guidance provided by the parties or the Independent Children’s Lawyer as to how this would occur. By the time of Trial the father had only spent time with the child Z on two brief occasions, one of those being for the purposes of observed interaction during the Family Assessment Report. The child Z is still breastfed.
I do not consider either party’s proposal for time spending between the child Z and the father, pending the child Z accompanying his siblings on full visits, as being in his best interests. The Orders set out herein fall into line with the broad submission made by counsel for the Independent Children’s Lawyer as being “an increase in time until overnights start at the age of three and a half years” without actually articulating what that might look like. The Orders set out herein provide for a graduated progression for time spending between the father and the child Z bringing to account his age, the lack of time spending to date, the distance between the parties residences, cost for the father in undertaking the transport and the need to keep the children together as much as possible.
The Court also declines to make an order for shared care as promoted by the mother in the event that the father relocates to Melbourne. The father was adamant in his oral evidence that he would not move to Melbourne and at Trial, he did not seek such an order himself. If and when the father moves to Melbourne, where he lives and his personal circumstances are all matters that would need to be reconsidered by the Court in making orders for the children in that time.
The Court declines to make an order that the father not engage in employment during his time spending with the children as sought by the mother. The mother’s counsel did not cross examine the father on this topic and it was not addressed in final submissions. Given that the father will predominantly be spending time with the children in school holidays and his stated commitment to the children, the Court would anticipate that the father will spend every precious moment with his children when they are with him.

The Court also declines to order that the parties share the cost of transport or that the mother be compelled to travel with the children to Adelaide for handover. The reality is that the father is far better resourced than the mother. The father is employed, has a driver’s license and a motor vehicle. The mother does not work, has no driver’s license, is illiterate and no motor vehicle. The mother would need to rely on her family’s generosity for this to occur. Whilst the mother’s family were prepared to assist with transport during the currency of these proceedings, the Court cannot compel them or assume that they will be prepared to do so in the future. To assume otherwise may invite future disputation.
The Court is satisfied that the orders proposed are in the best interests of the six subject children
For all of the above reasons, I make the orders as set out at the commencement of this Judgment.

I certify that the preceding two hundred and seven (207) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dickson.
Associate:
Dated: 6 December 2022

File number(s):	ADC 3712 of 2021
Judgment of:	JUDGE DICKSON
Date of judgment:	6 December 2022
Catchwords:	FAMILY LAW - CHILDREN – parenting orders – six children – where the youngest child was aged ten months at Trial – unilateral relocation of the children by the mother to Melbourne – where the mother has significant physical disabilities – where previous interim orders were made for the five eldest children to return to live with the father pending Trial – where both parties refuse to relocate closer to each other from their respective States – final orders by consent for equal shared parental responsibility – where the Court orders the children to live in Melbourne with the mother – time spending arrangements between the children and the father – view of gradually increasing time between the father and the youngest child – best interests of the children
Legislation:	Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA.
Cases cited:	AMS v AIF (1999) CLR 160 Bale & Bale [2016] FCCA 680 D & SV [2003] FamCA 280 Hall & Hall (1979) FLC 90-713 Heath v Hemming (No 2) [2011] FamCA 749 Malcolm & Monroe & Anor [2011] FamCAFC 16 MRR v GRR (2010) 240 CLR 461 U v U [2002] HCA 36.
Division:	Division 2 Family Law
Number of paragraphs:	207
Date of hearing:	13-16 September 2022
Place:	Adelaide
Counsel for the Applicant:	Mr Childs
Solicitor for the Applicant:	Daniel John Lawyers
Counsel for the Respondent:	Ms Lee
Solicitor for the Respondent:	Denise M Rieniets & Associates
Counsel for the Independent Children's Lawyer:	Ms Boyle
Solicitor for the Independent Children's Lawyer:	Legal Services Commission

ADC 3712 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR MAMAT Applicant
AND:	MS SEPRI Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	JUDGE DICKSON
DATE OF ORDER:	6 December 2022