Nisic & Keitel - [2024] FedCFamC1F 96

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Nisic & Keitel [2024] FedCFamC1F 96

File number(s): BRC 1547 of 2020

Judgment of: HOWARD J

Date of judgment: 28 February 2024

Catchwords: FAMILY LAW – PARENTING – Where the children were born in Queensland and have always lived in Town B with the mother and the father – Where the mother was born in Country C and seeks the permission of the Court to relocate the residence of the children to Country C – Where the father opposes the application and seeks an order that the children remain living in Town B – Best interests – Parental responsibility – Equal time – Mother’s application for permission to relocate the residence of the children to Country C refused.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60DA, 65DAA

Mental Health Act 2016 (Qld)

Cases cited:
Adamson & Adamson [2014] FamCAFC 232

AMS v AIF (1999) 199 CLR 160

Baghti & Baghti & Ors [2015] FamCAFC 71

Beckham v Desprez (2015) 55 Fam LR 310

Briginshaw v Briginshaw (1938) 60 CLR 336

Browne v Dunn (1893) 6 R 67

Cox v Pedrana (2013) 48 Fam LR 651

Eagle & Scarlett (No.2) [2020] FamCAFC 291

Goode & Goode (2006) FLC 93-286

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Johanson & Johanson [2022] FedCFamC1A 74

LC v TC (1998) 23 Fam LR 75

Masson v Parsons (2019) 266 CLR 554

MRR v GR (2010) 240 CLR 461

Sayer v Radcliffe [2012] FamCAFC 209

Taylor & Barker (2007) FLC 93-345

U v U (2002) 211 CLR 238

Whisprun Pty Ltd & Dixon (2003) 200 ALR 447

Division: Division 1 First Instance

Number of paragraphs: 164

Date of last submission/s: 16 August 2023

Date of hearing: 4, 5 and 6 July 2023

Place: Brisbane

Counsel for the applicant mother: Mr Alexander and with him Ms Ferguson

Solicitor for the applicant: Wilsons The Family Lawyer

Counsel for the respondent: Mr McGregor

Solicitor for the respondent: Damien Greer Lawyers

Counsel for the Independent Children’s Lawyer: Ms Wardle

Solicitor for the Independent Children’s Lawyer: Forest Glen Lawyers

ORDERS

BRC 1547 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS NISIC

Applicant

AND:
MR KEITEL

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

HOWARD J

DATE OF ORDER:

28 FEBRUARY 2024

THE COURT ORDERS:
1.That by no later than 4:00pm on 13 March 2024, the Applicant, the Respondent and the Independent Children’s Lawyer shall each provide a copy of a proposed Final Order (reflecting the Reasons for Judgment) to the Court at …@....
2.That by the same time and date stated in Order 1 each party and the Independent Children’s Lawyer shall exchange copies of their proposed Final Order.
3.That the parties and the Independent Children’s Lawyer shall attempt to reach an agreed position in relation to the wording of the Final Order (reflecting the Reasons for Judgment) and in the event that an agreement as to the wording is reached then the Independent Children’s Lawyer shall send a copy of same to the Court by no later than 4:00pm on 20 March 2024.
4.That in the event it is not possible to reach an agreed position in relation to the wording of the Final Order the matter shall be listed for Mention and each party shall attend personally along with their legal representatives (if any) on a date to be fixed by the Court so that the Court can hear further submissions in relation to the wording of the Final Order.

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 the pseudonym Nisic & Keitel has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOWARD J
BACKGROUND

The applicant mother is Ms Nisic. She was born in City D, Country C in 1983. City D is situated in Region E. The mother’s parents and her other family members remain living in Region E.
The respondent father is Mr Keitel. He was born in Town B, Queensland, Australia in 1981.
The mother is self-employed and operates her business in Town B, Queensland.
The father also lives in Town B as he has done his whole life. The father is employed as a public servant.
Up until 2004 – the mother had lived her entire life in Country C. The mother migrated to Australia at the age of 20 in 2004.
In 2009, the parties met and they commenced living together later that year. The parties separated on a final basis on or about 12 February 2018. The parties never married.
The parties have two children – X (born 2013) and Y (born 2015).
The parties have not been able to reach an agreement in relation to parenting arrangements on a final basis for their children. Both children were born in Town B and both children have lived their whole lives in the town of Town B. The children attend school in Town B – the same school that the father himself attended.
The children currently live primarily with the mother and spend time with the father five nights per fortnight. This is pursuant to an order made by a Senior Judicial Registrar on 26 November 2021. It is a split arrangement – with the children spending time with the father from Friday after school until the commencement of school on Monday each alternate weekend. In addition to those three nights – the children spend time with their father (in week two) from after school Thursday until 10.00am Saturday.
The primary dispute between the parties relates to the fact that the mother seeks the permission of the Court to relocate the residence of the children to Region E in Country C.
The father seeks final orders that would see the children remain living in Town B, Queensland, and would allow his time with the children to increase to a week about shared care arrangement.
In the event that the Court grants permission to the mother to relocate the residence of the children to Country C – both parents seek orders whereby the children would travel to Australia each year to spend time with the father and other orders are proposed (by both sides) that would permit the father to spend time with the children in Country C each year. In the event that the Court reaches the conclusion that the children's best interests are served by remaining in Town B – the mother seeks an order that would see the children living primarily with her and spending four nights per fortnight with the father – in a block. The mother also seeks orders that would permit her to travel with the children to Country C on two occasions each year to visit family and friends.
The Independent Children's Lawyer seeks a final order that would require the children to remain living in Australia and spend week about time with both parents during the school term, and various orders for holiday time including provision for the mother to take the children to Country C for four weeks each year in the Christmas holidays and two weeks in the mid-year holidays (June and July).
FAMILY LAW ACT 1975 (CTH)
Parenting proceedings are determined in accordance with the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”). Section 60B of the Act sets out the objects of Part VII, and the principles underlying it. Section 60B(1) states:
“60B Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
The High Court of Australia in Masson v Parsons (2019) 266 CLR 554 referred to s 60B(1)(a) of the Act. At [8] the Court stated:
“Subdivision B of Div 1 of Pt VII, which is headed "[o]bject, principles and outline", provides, inter alia, in s 60B(1) that the objects of Pt VII include "ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”
(Emphasis added)
Of particular note is the fact that the High Court[1] added emphasis to the word "both" in s 60B(1)(a). This is not surprising. As long ago as 2006, the Full Court in Goode & Goode (2006) FLC 93-286[2] highlighted the intention of the legislature that both parents have substantial involvement in the life of the children – and this is relevant to the time that the parents spend with the children and to the question of parental responsibility.
[1] Per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ.
[2] At [70] – [72].
The case before the Court is an international relocation case. It is to be determined in the same manner as any other parenting case (Sayer v Radcliffe [2012] FamCAFC 209 at [47]). The mother's evidence is that she would be happier if she could live with the children in Country C. There is no suggestion in the evidence that the mother will return to live in Country C without the children.
The mother is not required to demonstrate compelling reasons as to why she should be granted permission to relocate the residence of the children to Country C. Indeed, no parent is required to demonstrate compelling reasons to live where they propose to live: AMS v AIF (1999) 199 CLR 160 at [47][3]; U v U (2002) 211 CLR 238 at [82][4] (“U v U”); Adamson & Adamson [2014] FamCAFC 232 at [65]. As Gummow and Callinan JJ stated at [89] in U v U: –
“...whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by a movement of a parent.”
[3] Per Gleeson CJ, McHugh and Gummow JJ. Kirby J agreed at [195].
[4] Per Gummow and Callinan JJ with whom Gleeson CJ agreed.
Their Honours (Gummow and Callinan JJ) stated further at [92], inter alia: –
“The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.”
SECTION 60CA - CHILD'S BEST INTERESTS THE PARAMOUNT CONSIDERATION IN MAKING A PARENTING ORDER
In deciding whether to make a particular parenting order in relation to a child, s 60CA states that the Court must regard the best interests of the child as the paramount consideration.
SECTION 60CC
Section 60CC of the Act states how the Court is to determine what is in a child's best interests. The primary considerations are set out in s 60CC(2) and s 60CC(2A). Those two subsections state:
“(2) The primary considerations are:
(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, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).”
There were a number of important matters in this case that were not in issue. Both parents agreed that there are benefits to the children in having a meaningful relationship with the other parent.
Further, I do note that both parents provided evidence in relation to family violence and certain other risk issues. In particular, the mother documented evidence of family violence that she said the father perpetrated during the course of the relationship. The mother also provided evidence in relation to the father's excessive consumption of alcohol during the course of the relationship. The existence of family violence and the excessive consumption of alcohol would normally loom large in a parenting case when the Court is considering the question of risk of harm to the children. But that is not the way that this trial was conducted by these parents. In particular, the mother did not pursue a case against the father that her allegations of historical family violence were now in any way a risk factor for the children or for any person.
Furthermore, the mother conceded that the father's consumption of alcohol[5] no longer presented any form of risk of harm to the children in the care of the father.
[5] The mother's allegation was that there had been (historically) excessive consumption of alcohol by the father.
Neither the mother nor the father pursued any risk issues relating to family violence or alcohol consumption.
In those circumstances, I do not consider that it is either necessary or appropriate for the Court to make findings in relation to the specific allegations relating to family violence and in relation to the father’s consumption of alcohol. I note what the High Court had to say in the case of Whisprun Pty Ltd & Dixon (2003) 200 ALR 447 ("Whisprun"). At [62] the Court stated, inter alia:-
“[62] …A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.”[6]
[6] Per Gleeson CJ, McHugh and Gummow JJ.
This decision of the High Court in Whisprun is consistent with an earlier decision of the Court of Appeal in New South Wales – Housing Commission of New South Wales v Tatmar Pastoral [1983] 3 NSWLR 378 (“Tatmar Pastoral”). At pp.385–386 Mahoney JA stated at stated, inter alia:-
“It is not the duty of the judge to decide every matter which is raised in argument. He may decide a case in a way which does not require the determination of a particular submission: in such a case he may put it aside or, as Lord Scarman said, merely salute it in passing…”
More recently, the Full Court of this Court reaffirmed Whisprun and Tatmar Pastoral in the following three cases:
(a)Baghti & Baghti & Ors [2015] FamCAFC 71 at [63] where the Court stated that it:-
“…is not required to make findings in relation to all of the facts put in issue by the parties. A court need only determine those facts that are necessary for the determination of the issues between the parties.”
(b)Eagle & Scarlett (No.2) [2020] FamCAFC 291 at [103].
(c)Johanson & Johanson [2022] FedCFamC1A 74 at [43].
Notwithstanding the fact that the parties have not pursued – as risk issues – the evidence they adduced concerning family violence and alcohol consumption – it should be made abundantly clear that I have carefully considered that evidence. Whilst I am not required to make findings about each and every fact in issue (in particular relating to the allegations of family violence and the consumption of alcohol and illicit substances), I do consider it appropriate in the circumstances of this case to make the following findings:
(a)The parents had a volatile relationship with frequent verbal arguments;
(b)The father did, on occasions during the course of the relationship, consume alcohol to excess;
(c)The mother accepts that the father was not overly aggressive when he drank. Notwithstanding that fact, the father’s consumption of alcohol did lead to ongoing conflict within the relationship;
(d)The mother is neither a shy nor a timid person and the mother would often start verbal arguments with the father – particularly when the father had failed to perform some domestic task to a standard acceptable to the mother;
(e)When the father was consuming alcohol he would, on occasion, engage in a running commentary, criticising the mother in relation to various matters; and
(f)As to the head-butting incident – I find that this was more likely than not inadvertence on the part of both parents – as they leaned in towards each other during a verbal argument.
Because of the concessions made by the parties (on the subject of risk) and the way each party ran their case and the manner in which the parties (through their respective counsel) cross‑examined – I am not in a position to, and nor am I willing to, make any further findings in relation to the allegations of family violence. The mother maintains that during one argument, the father had her in a stranglehold around the neck. The father denies this. There was no cross-examination on this point. Neither side "put" their version to the other parent in the witness box. I know that there is a line of authority to the effect that the rule in Browne v Dunn (1893) 6 R 67 does not necessarily apply if evidence in chief is provided by affidavit.[7] However, when such a serious allegation is made – in my view, it should be “put” in cross examination so as to give the Court the opportunity to sufficiently weigh that evidence and make an appropriate finding one way or the other. In this regard, I am mindful of s 140(2)(c) of the Evidence Act 1995 (Cth).[8]
[7] LC v TC (1998) 23 Fam LR 75.
[8] And the decision of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at page 362.
It is not surprising that the parents were not cross-examined on these issues. I am not, in any way, critical of the way in which the counsel conducted their cross-examination. The overwhelming weight of the evidence leads to the conclusion that both the mother and the father are excellent parents and that they both have the capacity to care for the children in a proper and appropriate way. There was conflict in their relationship. On occasions, both parents were to blame. I note that the father wrote to the mother apologising for his conduct. I note that the father was particularly contrite in relation to the burning of the mother’s diaries.
I accept the father's evidence that he has significantly reduced his alcohol consumption since the time of separation. The CDT testing annexed to the father's trial affidavit supports his evidence in this regard. Furthermore, the drug test results annexed to the father's trial affidavit also supports his evidence that he has ceased the consumption of cannabis. I accept that he ceased using marijuana in 2016.
Having carefully considered the evidence of the parties relating to family violence and alcohol and drug consumption – I have come to the same conclusion as the parents and the ICL. There are no current risk issues for the children in this case relating to family violence, alcohol consumption or the consumption of illicit drugs.
There was one risk issue that was belatedly considered by the parties. The father has a new partner named Ms G. Her marriage to Mr F broke down in mid-2022. On or about the day that Ms G and Mr F separated she drove a motor vehicle (with the youngest of her three children in the vehicle) to a shop in or near Town B. The shop was owned by Ms G and Mr F. There is contained in Exhibit 1 (the tender bundle provided to the Court by the ICL) a police report in relation to that incident. Much of that police report is contested by Ms G. Ms G appears to have pleaded guilty to multiple charges. Ms G appears to have had some form of stress reaction or nervous type breakdown on the day in question, and she was involuntarily detained under the Mental Health Act2016 (Qld) for up to two nights at a hospital. Ms G continues to see her own treating psychologist to address any mental health issues that she may have.

Ms G gave evidence at the trial. I found her to be an impressive witness. At the time of the incident that occurred in mid-2022 Ms G was obviously under a lot of stress. That was the particular day when she and her husband were separating on a final basis. Ms G had endured living with a man (her husband, Mr F) who used illegal substances and I accept her evidence in relation to the difficulties that this caused in their relationship, including difficulties relating to family violence.
There is also evidence that in or about 2012, Ms G had stated to the police that she wanted to kill herself. This appears also to have been in the context of a relationship breakdown. At that time Ms G was 19 years of age.
I would note that both the Queensland Child Protection Authorities and the Federal Circuit and Family Court of Australia (Division 2) have directed or ordered that Ms G’s three children live on a full-time basis with her and only have supervised time with their father (Mr F).
Notwithstanding the two extremely stressful situations that occurred in the life of Ms G (in about 2012 and 2022), she continues to care on a full-time basis for her three young children. Ms G presented (as I have previously noted) as an impressive witness. She was both quietly spoken and thoughtful in her responses. I have confidence that she will continue to engage with her psychologist as needed. I do not consider that Ms G poses any form of a risk of harm to the subject children in the case currently before the Court.
I do note that the father in the present case (Mr Keitel) does not live with Ms G. They maintain separate residences. They are considering moving to live together perhaps in about 12 months time. I also note that the mother has put forward a proposal that would require Ms G's time with the children to only be spent in the presence of either Mr Keitel or some other adult for a period of 12 months. This proposal was in fact put to the father (Mr Keitel) in the witness box by counsel for the mother, Mr Alexander. The father, whilst not conceding that such a measure was necessary, seemed happy enough to, as it were, go along with it. The father’s counsel, Mr McGregor, made the point that the father had not formally conceded that such an order was necessary. However, I do consider that it is such a relatively minor imposition upon the father and Ms G that it is in the best interests of the subject children to put such a measure in place. If this does nothing more than give the mother peace of mind – it is a worthwhile measure. I note that the ICL supports this proposal and, as seen, the father was happy to go along with it.
THE MOTHER’S HEALTH
It is well-settled that the Court is not required to consider the various sections and subsections in Part VII of the Act in any specific order.[9] I would ordinarily consider the topic of the mother's mental health when considering s 60CC(3)(m). In the circumstances of this case, it is more convenient for me to deal with this issue at this stage in these reasons for judgment.
[9] Note Cox v Pedrana (2013) 48 Fam LR 651 at [29]-[31]; Beckham v Desprez (2015) 55 Fam LR 310 at [31].
The mother's psychologist, Ms H gave evidence at the trial by telephone-link. Ms H had prepared a report which is annexed to her affidavit filed 21 June 2023.
Under cross examination it was revealed that the mother had attended upon Ms H on six occasions in 2017; three occasions in 2018; three occasions in 2021 and seven occasions in 2023.
In her written report dated Friday 16 June 2023 (annexed to her affidavit) – Ms H summarised why the mother had sought professional support as follows:-
“[Ms Nisic] attended my practice initially to explore relationship difficulties with her then husband. The relationship issues continued and [Ms Nisic] experienced adjustment disorder due to the deterioration of the relationship and a number of interpersonal incidents prior to their separation. There has then been a progression towards Major Depressive Disorder (moderate) due to the ensuing realisation by [Ms Nisic] that she craved an extended family and cultural immersion for herself and her children, and ongoing family and friend supports beyond once a year visitation to [Country C]. Visits by [Ms Nisic] exacerbated her homesickness upon her return, and have lasted for longer periods, and are now on a continual basis.”
Ms H has diagnosed the mother as experiencing “Major Depressive Disorder (moderate).” Ms H notes that the mother is a resilient and determined individual. Ms H stated this in a particular context. It seems that the mother had reported two instances where the mother maintains that she was harassed by a member (or members) of the community. My attention was not drawn to any evidence concerning the harassment of the mother by members of the Town B community. The overwhelming weight of the evidence is to the contrary. The mother is a well-respected member of the Town B community. The mother has established a professional business and has the confidence and the support of her clients. The mother provides services to various clients in Town B. The mother did not run a case in Court that she was being harassed by members of the Town B community. Hence, the reference by Ms H to the possibility of “enduring harassment” seems out of place and is not supported by the other evidence. Having listened to evidence in thousands of cases in this jurisdiction over the last 17 years – it very often occurs that social media is a source of unhappiness for many people. It is not the mother’s case that there has been enduring harassment of her in the town of Town B. It is not the mother’s case that she ought to be permitted to relocate the residence of the children to Country C because of enduring or any other form of harassment in Town B.
Ms H stated that the mother is experiencing a major depressive disorder – which is further described as “moderate”. Ms H said on page 3 of her report:-
“The emotional distress experienced from navigating her separation and parenting arrangements for the children has exacerbated her depressive symptoms, and enhanced her feelings of disconnection from others, resulting in feelings of unresolved frustration, hopelessness and helplessness. The aspects which perpetuate this is the homesickness and emotional distress from not being in the familiar supportive social and cultural environment of her origins, and missing out on important rituals, celebrations and grief occasions within her family. Additionally there is the awareness that her children are not able to have constant access to her family members for their support and sharing in everyday life matters readily, particularly with the time difference between [Country C] and Australia.”
Ms H has been utilising cognitive behaviour-based therapy and another kind of therapy, which she described as “ACT (acceptance and commitment based therapy)”. Ms H says that this treatment is used in order to utilise strategies to assist the mother in accepting her current situation. Notwithstanding the existence of Ms H’s diagnosis – the mother is not taking any prescribed medication. Ms H was cross-examined on this point by Ms Wardle of counsel on behalf of the ICL. Ms H’s answer was that, in her opinion, the mother does not need medication. Ms H said that medication could be considered “down the track” – if the mother's function became worse. Ms H stated that the underlying core of the mother's depressive disorder is homesickness. Ms H stated in her report (page 2) that in her professional opinion, there is a high probability that the mother’s depressive symptoms may escalate and her daily function become more seriously impacted in the event that the Court concludes that the mother should not be granted permission to relocate the residence of the children to Country C. Ms Wardle cross-examined Ms H in relation to this aspect of the evidence. Ms H stated that this is something that “may” happen.
Ms H was asked whether, in the event that the mother remained living with the children in Australia – her depressive symptoms would be mitigated if she was permitted to travel to Country C once or even twice per year with the children. Ms H thought that this would exacerbate the mother’s homesickness. That opinion is at odds with the orders sought by the mother. In the event that the mother remains living in Australia with the children, the mother seeks orders that she be permitted to travel with the children to Country C twice per year. In fact, in her written report, Ms H stated that there is a high probability that the mother's depressive symptoms “may” escalate but she went on to state – “this would particularly be the case with the children not necessarily being able to accompany her to [Country C] for visits”.
There is no suggestion by the father or the mother or the ICL that the Court should put in place an order that would prevent the children from accompanying the mother on visits to Country C – in the event the mother remains living with the children in Australia.
The mother’s position is sensible. In the event that the mother and the children remain living in Town B – the mother would prefer to travel to Country C twice per year, with the children. That is clearly the correct approach to take. It would seem to me to be a highly unusual approach if it were otherwise. That is to say, if, like the mother, a person is pining for their country of birth – it seems more sensible to visit the country of birth more often rather than less often.
Evidence of the mother's mental health is one of the considerations for the Court to take into account in determining the best interests of the children. The question of a person’s mental health and the impact it may or may not have on that person’s parental capacity is a very important question. What Ms H actually says in her report on page 4 on this issue is as follows-
“[Ms Nisic] is experiencing impacts from the depressive symptoms, noticing reduced motivation, less feelings of reward /satisfaction/ pleasure (anhedonia) and some minor impacts upon her daily functioning. They are minor in the sense that she continues to engage in a meaningful way with her children (no evidence of emotional or social withdrawal), retains routine, has insight into her issues and tries to protect them from being concerned or aware of the adult matters.”
In this evidence, Ms H confirms that the mother’s depressive symptoms are having “minor impacts” upon the mother’s daily functioning. The conclusion that I draw from this evidence is that the mother’s mental health is not adversely impacting upon her parental capacity. Importantly, the mother continues to engage in a meaningful way with the children.
THE EVIDENCE OF MR J
Mr J has prepared two Family Reports. The first Family Report is annexed to an affidavit filed 23 March 2021. The second Family Report is annexed to an affidavit filed 4 May 2023.
Mr J was not required for cross-examination. In paragraph 37 of his first report, Mr J states that the mother acknowledged – “They love their dad and they would miss him”. This is the mother’s acknowledgement in the event that she relocated with the children to Country C. The mother did also state to Mr J that she and the father would have been able to work together as parents without involving the Court – if not for her own wish to relocate to Country C.
In paragraphs 38 and 39 of Mr J’s first report he states:-
“38. [Ms Nisic] also reported being aware, and mindful of [Mr Keitel’s] objections to her application for sole parental responsibility, and her proposal to change the children’s family name. She reported these proposals being specific to her application to relocate. She believes having the capacity to make sole parental decisions would be appropriate under these circumstances. She also believes changing the children’s family name would make international travel easier, and help the children adjust in [Country C].
39. If [Ms Nisic] is not permitted to relocate, she believes these issues would be irrelevant. She reinforced that the only reason for her parenting application was to relocate with the children to [Country C]. If the Court determines that her application is not in the children’s best interest, she suggested, “I would be upset because I believe it would be better for me and the children, but I am the type of person who will make the most out of things. I do have a life, a job, and friends in the community in [Town B].”
I particularly note the statement made by the mother to Mr J and referred to in paragraph 39. The mother made a frank admission to Mr J that she does “...have a life, a job and friends in the community in [Town B].” Mr J was not required for cross-examination. He was not challenged in relation to this admission made by the mother. In her oral testimony, the mother sought (somewhat) to backtrack on the question of the number of her friends in the Town B community. The mother sought to reclassify certain people as "acquaintances" rather than “friends”. The frank admission in paragraph 39 of Mr J's first report is more likely to be accurate – having been made by the mother in the context of an interview for a Family Report – and not in the spotlight of the courtroom during a trial.
In paragraph 47 of his first report, Mr J records that the mother “...reinforced her opinion that the children will benefit from both parents being substantially involved in their future parenting”.
The father told Mr J (paragraph 61) that he has always encouraged the children's connections with their extended Country C family and culture, and he is committed to the same approach in the future. This statement by the father to Mr J is consistent with the evidence. When the parents were together the family travelled to Country C to visit the mother's family on more than one occasion.
The father told Mr J that the mother – “...built an extensive support network, and a solid friendship group in [Town B]. He noted that she has a successful business that allows flexibility, and she has stable access to accommodation."[10]
[10] Note paragraph 68 of Mr J's first Family Report.
Those comments stated by the father to Mr J (recorded in paragraph 68 of Mr J’s first report) are entirely consistent with the comments made by the mother and recorded by Mr J in paragraph 39 of the same report.
The first interview with Mr J occurred on 18 January 2021 when the children were aged seven and five respectively. In paragraph 85 of the first report, Mr J records:-
“85. [X] did seem to be aware that [Ms Nisic] would like to live in [Country C], although she suggested, “We maybe would live there, but we would miss Dad very, very, very much.” [Y] suggested he would stay in Australia with [Mr Keitel] if [Ms Nisic] relocated. [X] questioned that and seemed to weigh up the competing issues in her head. The children also questioned what would happen to all their pets. They reported having [several pets]. The also reported having [several pets] at [Mr Keitel’s] home.”
(As per original)
Under the heading "evaluation", Mr J stated at paragraph 96:-
“96. [Ms Nisic] acknowledged that had it not been for her desire to relocate the children to [Country C], she and [Mr Keitel] may have continued to parent the children together without the Court’s involvement. Observations made during the assessment would tend to support this position. As parents, [Ms Nisic] and [Mr Keitel] were cooperative, child-focused, and considerate of each other’s needs. Likewise, the children seemed well-adjusted, self-confident, and content.”
This evidence from Mr J is consistent with the other evidence in the case. Mr J gave further evidence at paragraphs 106, 107 and 108 as follows:-
“106. Understandably, [Ms Nisic] may wish to return to [Country C] to be with her family following the family separation, and she may feel disconnected to Australia. However, she is well-established in the [Town B] community, she has developed a network of support, and she operates a successful business. There appears to be no evidence to suggest her mental health would be compromised by an adverse decision, and if her application is not supported, she is likely to remain in the [Town B] community.
107. [Ms Nisic’s] needs must be considered against the potential implications for the children. The children have developed a significant bond and attachment with [Mr Keitel], and he has a well-established sense of identity as their father. The children also have existing extended family networks and a circle of friends in [Town B]. [X] appears to be doing well educationally, and [Y] is about to commence his formal education.
108. The children have enjoyed substantial, significant, regular time with [Mr Keitel] since the final separation and they expressed a wish to spend more time with him, not less. Reducing their time so significantly, would in my opinion, have a detrimental impact. However, maintaining the children’s connection with [Ms Nisic’s] family in [Country C] is important, and the children should not be inappropriately restricted from travelling with [Ms Nisic] once conditions permit.”[11]
[11] I do note that there is now evidence in relation to the mother's mental health – namely the evidence of Ms H. That evidence was not available to Mr J at the time of writing his first report.
As I have noted on more than one occasion, the evidence of Mr J was not contested by the mother nor by any other person. In particular, I note that the opinion of Mr J is that reducing the children's time with their father so significantly (as proposed by the mother) would have a detrimental impact on the children.
In the conclusion to his first Family Report, Mr J recommended that the children continue to live in the Town B region; that the parents have equal shared parental responsibility in respect of the children and that there be put in place orders whereby the children would live primarily with the mother and have increased time with the father. Mr J also recommended that the children be permitted to travel to Country C with the mother on at least one occasion per year for up to a four week period.
MR J’S SECOND REPORT
The second report of Mr J is annexed to his affidavit filed 4 May 2023. That affidavit was actually sworn by Mr J on 17 March 2023 following interviews which took place on 7 March 2023. At the time of the second interviews, the children (X and Y) were aged respectively nine years (X) and seven years (Y). In paragraph 5 of the second Family Report, Mr J records that the mother told him that since 2021[12] the mother has expanded her business and, in the interim, began conducting regular work for new clients. The mother is also able to maintain flexible working hours in order to accommodate the children’s needs.
[12] The date of the first Family Report.
Mr J stated in paragraph 17 – “...[Ms Nisic] acknowledged that she and [Mr Keitel] are now relatively cooperative in relation to the day-to-day parenting arrangements, and she suggested that the children have benefited from their improved circumstances”. Presumably the mother was referring to an improvement in the cooperation between the parents.
By the time of the second Family Report, the mother no longer wished to pursue a sole parental responsibility order – but, of course, maintained her desire to relocate the residence of the children to Country C. If that occurred, the mother continues to seek a change of surname for the children to “Keitel Nisic”.
By the time of the second Family Report, the mother had amended her proposal – in the event the children were permitted to relocate with her to Country C. This is important because it means that Mr J had up-to-date information in relation to the mother’s proposal. The mother proposes[13] that (if the children are living in Country C with her) they would spend 3 to 4 weeks per year in Australia with the father during the Country C summer period (August to September) – at the mother's expense. The mother also proposes up to two further periods of 3 to 4 weeks in Country C each year depending upon the father's work schedule. This would be at the father's expense. The mother suggested this might allow time during Christmas for the father to spend with the children in Country C. The mother also brought to the attention of the Family Report writer the fact that the father would be offered holiday accommodation by her parents – in a cottage, house or flat[14] which is situated on or near the mother's family’s property in Region E. The mother also highlighted different school attendance times in Country C with the school day concluding by early afternoon – which, the mother said, would assist the father and would help him maximise his time with the children during any future trip to Country C.
[13] Both in her interview with the Family Report writer in March 2023 and at the trial of this matter in July 2023.
[14] It was not altogether clear.

By the time of the second Family Report, it was specifically noted by Mr J (at paragraph 35) that neither party had made any further allegation in relation to family violence. Furthermore, Mr J noted (in paragraphs 37 and 38) that there were no issues or concerns relating to the father's consumption of alcohol or use of marijuana.
Importantly, I note paragraph 39 of Mr J's second report. That paragraph states – “No diagnosed history of mental health was disclosed, and no issues were identified during the assessment.”
It is not clear to me why, in March 2023, the mother did not draw to the attention of Mr J any of her concerns relating to her own mental health. I do note that the mother did not consult Ms H at all during 2022. The mother has consulted Ms H during 2023 – but Ms H did not have the dates of those sessions in 2023.[15] Ms H’s report is dated Friday, 16 June 2023. Her opinions were not (as far as the Court is aware) referred to Mr J for his opinion or comment. The mother did not require Mr J for cross-examination. Hence, paragraph 39 of Mr J's report continues to leave open the question – why didn't the mother inform Mr J in March 2023 of any concerns or issues relating to her own mental health? The inference which I draw from this evidence is that, as at March 2023, the mother must not have considered that her mental health was an issue of significance. Surely the mother would have mentioned her mental health to Mr J doing the family report interviews in March 2023 – if her mental health was actually causing her concern.
[15] Page 94 of Wednesday 5 July 2023 Transcript, lines 35-36.
In paragraph 47 of the report, Mr J states –
“47. [Ms Nisic] reported being resolute in her application to relocate. Reflecting on her current circumstances, she reported being, "Caught in limbo." [Ms Nisic] acknowledged that she has been able to establish herself in the [Town B] community post-separation, although she noted, "I only really have my work and my kids. I [take care of] animals, so there is not much time for me and I have no one to share that with, I'm lonely here." She also reported struggling at times with having no one to, "Share the load" with financially, or to confide in emotionally. She reported having only one close friend in [Town B] and limited access to external family support due to the significant time differences between Australia and [Country C].”
This information provided by the mother to Mr J does tend to support the father's assertion that the mother is spending a lot of time working and (I infer) less time socialising. I am not satisfied that there is any adequate explanation from the mother as to why, between the Family Report in early 2021 and the Family Report in early 2023, her social network reduced from having “friends in the community in [Town B]” to “having only one close friend in [Town B]”.
I note that the mother told Mr J that both children attend Country C language classes and are making good progress. The mother stated, "We mostly only speak [Country C’s language] at home and that has also helped".
The mother also reported issues relating to the running of the family farm in Country C (paragraph 53 of Mr J's report).
Mr J interviewed not only the mother but also the father and Ms G. I note that by the time of that interview, Ms G and her children had been, on occasions, having sleepovers at the father's residence when the subject children were present.
As to the issue of the children communicating with the father by electronic means – the father raised this issue with Mr J in relation to a period of time between August and November 2022. In paragraph 69 of his report, Mr J states -
“69. Referring to Facetime communication, [Mr Keitel] noted, "[X] stopped talking to me between August and November (2022) and [Ms Nisic] didn't really address that." Likewise, he claims, "7:30 pm on Tuesday is now the only time [Ms Nisic] can fit me in. I'm not consulted I'm just told and then I have to adjust." He also noted that the children will be encouraged to adopt [Country C language] as their first language, and he believes they may become frustrated by having to adjust from [Country C language] to English when they communicate with him.”
The father pointed out to Mr J that when the mother visited Country C with the children at the end of 2022/beginning of 2023 that phone calls "were a problem". Some calls did not occur when scheduled and others were "cut short". On day one of the final hearing on 4 July 2023, the mother was being cross-examined by Mr McGregor of Counsel on behalf of the father. Mr McGregor asked the mother about the occasions when X wouldn't talk to the father via FaceTime.[16] At lines 24 and 25 on page 57 of the transcript, I note the following evidence –
[16] Mr J’s second report, paragraph 69.
“Mr McGregor: Did you think that it was incumbent on you to ensure that the time that the children communicate with the father was actually complied with?
[Ms Nisic]: Yes. I do agree that I need to comply with him - - -
Mr McGregor: Yes
[Ms Nisic]: and it has been always on mutual agreement that we talk to each other. Considering how [X] was on those days, I respected her for not wanting to.
Mr McGregor: How could you respect her for not speaking to her father?
[Ms Nisic]: Because it’s her opinion. She is actually quite older nine year old, and has – and we’ve got to respect our children.”
The mother's responses in cross-examination were not impressive. This would be a significant problem in the event that the mother was living in Country C with the children because the father's communication with the children would, to a very large extent, be dependent upon electronic communication. This is a significant concern for the Court.
The relationship between the parents (at least in so far as it concerns the parenting of the children) had shown signs of improvement according to Mr J (paragraphs 74, 75 and 76). The ongoing litigation was, of course, putting both parents under strain.
As to the children's wishes as stated to Mr J in March 2023, I note the following relevant paragraphs from his report –
“82. The children were more aware of the adult dynamics and the competing proposals on this occasion. [X] reported being, "Okay" with living in [Country C] because she would see her, "[Country C] family more." Although she seemed uncertain about living so far away from [Mr Keitel] and she seemed emotionally torn. Nevertheless, she suggested, "If we do live there, Dad could visit us lots."
83. [Y] was not so keen on the idea of relocating. He reported, "I'm not sure about living there, I just want to spend time with my family in [Country C]." [Y] noted that he would have to leave his friends behind. [X] noted, "[Y’s] the only boy cousin in [Country C]."
84. [X] noted that they had been going to [Country C language] school and that she would have, "No problem" transferring into the [Country C] education system. She reported attending school for a day with her cousin when they visited in December 2022. [Y] suggested his preference would be to stay at his current school with his friends.”
The children are, of course, still very young but, it is important at least for the Court to consider their stated wishes – such as they are.[17] Of further interest in relation to the stating of wishes is the fact that the children volunteered to Mr J, “If we stay in Australia we would like one week with Mum and one week with Dad”. Mr J went on to state that both children seemed to fluctuate (I presume in the joint interview that he conducted with both children) between the possibility of living in Country C and wanting time with both parents. Both children told Mr J that the time they were spending now with the father was “better than before”. X rated the previous arrangements a four or five out of ten, and Y rated them a two. The children are aware that whatever happens concerning the mother's application to relocate to Country C – either the father will be sad or the mother will be sad.
[17] Section 60CC(3)(a).
I have also taken into account evidence given by the mother in relation to some of the stated wishes of the children. Evidence of an independent expert such as Mr J concerning the stated wishes of the children carries more weight.
The children reported enjoying the sleepovers they have with Ms G's family visiting.
Mr J observed positive interactions between the father, Ms G and the children and also between the mother and the children. Mr J also noted that the parents themselves, “were highly cooperative during the assessment” and he noted that they communicated well. Mr J also specifically stated that the parents seemed to be relaxed spending time in the same room as each other during the reporting process. Unusually for litigation in this jurisdiction, the Family Report writer stated –“observations during the day were exceptionally positive and child‑focused.”[18]
[18] Paragraph 92 of the second Family Report.
During the Family Report interviews, I note that the mother spoke almost exclusively to the children in the language of Country C during the day. The mother was proud of the progress the children have made in learning the language. Mr J specifically stated that the father appeared to be supportive and unfazed by the circumstances – namely, the fact that the children are gaining proficiency in the Country C language. This accords with my impression of the father as a witness. The father is very supportive of the children's Country C heritage and the father is well aware of the importance of the children maintaining and fostering their Country C cultural heritage.
Under the heading of "Evaluation", Mr J has stated, inter alia:-
“97. Distance is a significant issue, and it would prevent regular time. Although the children are developing bilingual skills, language is also likely to be a barrier for [Mr Keitel]. As the immerse themselves in [Country C] culture, their predominant spoken language is likely to be [the language of Country C].
98. The implications for [Mr Keitel] being able to maintain active shared parental responsibility are also significant. Even under circumstances whereby [Ms Nisic] commits to the additional proposals she makes to manage this issue, the impact of distance and language will likely be a significant barrier. Likewise, the more routine aspects of shared parental responsibility associated with being present and supportive would be compromised.
99. The financial cost of maintaining physical time might also be prohibitive for [Ms Nisic], and whether she would have the capacity to commit long-term to the proposed travel arrangements is untested. [Ms Nisic] would be leaving an established business in Australia, and her future financial circumstances are unknown. Likewise, re-establishing her business in [Country C] is likely to be difficult and competitive. She might be able to diversify her employment options as detailed in her affidavit, although at this stage there appears to be no certainty.
100. There are also likely to be financial and practical impediments relating to whether [Mr Keitel] could travel frequently and commit to multiple long blocks of time. The barriers reducing his capacity to travel during the [Country C] summer were previously highlighted in the initial family report and these were reinforced during this assessment. Similarly, his holiday entitlement of four weeks might be difficult to manage. Having the capacity for shorter breaks to manage the demands of work would also be compromised. There may also be future financial pressures as he establishes his new relationship with [Ms G].”
(As per original)
In paragraph 102 of the second Family Report, Mr J states that there appears "to be no evidence to indicate that she (the mother) would be less able to effectively parent the children if they remain in Australia". This is my reading of the evidence of Ms H as well.
Mr J stated in paragraph 102 of the second family report – that there are significant implications for the children being able to maintain their parental relationship with the father if they move to Country C and Mr J said the father’s meaningful, regular time with the children would be compromised. Mr J stated further in paragraph 102 that, in his opinion, “costs verse potential benefits for the children do not support their relocation to [Country C].” In paragraph 109 of his report Mr J stated –
“if the court determines that it is in the children’s best interests to relocate, their relationship will likely be maintained with [Mr Keitel]. However, the risks associated with maintaining a regular meaning relationship may increase.”
Having observed the mother in the witness box and having noted her answers in relation to X’s refusal to communicate with her father via FaceTime for a three-four month period in late 2022 – the conclusion that I have come to is that there are, in fact, very great risks that the children will not be able to maintain a meaningful relationship with the father in the event that the children were living in Country C with the mother. Mr J was of the opinion that “there are significant implications for the children being able to maintain their parental relationship with [Mr Keitel]…” (paragraph 102 of his second report) and he was also of the opinion that, “the risks associated with maintaining a regular meaning(ful) relationship may increase” (paragraph 109 of Mr J’s second report)[19]. But I have had the benefit of observing the mother in the witness box. The mother “respected” X’s decision not to talk to her father via FaceTime for a three-four month period. This was when X was nine years old. As I have noted, electronic communication with the father would be absolutely essential if the children were living in Country C. What will the mother do if X decides not to speak to her father via electronic means from Europe? If the mother “respects” X’s decision again then the dangers in relation to the father’s ability to maintain a meaningful relationship with the children are extremely high. The view that I have formed is that, in the event the mother were granted permission to relocate the residence of the children to Country C that, having regard to the mother’s attitude as I have outlined, I am not confident that a meaningful relationship could be maintained between the children and the father. My view in this regard is strengthened by other factors that are present in this case. For instance, in the event the children remain living in Town B – the mother wants to reduce the children’s time with the father. This, again, is indicative of the mother’s true feelings and the mother’s true opinion of the children’s relationship with the father. I particularly note that in the first sentence of paragraph 109 Mr J stated that “if the Court determines that it is in the children’s best interests to relocate, their relationships will likely be maintained with [Mr Keitel].” The conclusion that I have reached is different to Mr J’s opinion as stated in the first sentence of paragraph 109 of his second report. For the reasons that I have stated – I am not confident that a meaningful relationship will be maintained between the children and the father – in the event the children are living in Country C.
[19] “meaning” in paragraph 109 in Mr J’s second report is obviously meant to be “meaningful”. The sentence does not make any sense otherwise.
Mr J was not challenged in relation to his opinions. It is, of course, ultimately a matter for the Court and not for the expert. However, the expert opinion is that, insofar as the children are concerned, it will be more beneficial for them (according to Mr J) if the children remain living in Town B. This is undoubtedly correct. This is particularly so taking into account my finding that in the event that the children were living in Country C – that the mother’s attitude towards the father is such that the Court is not confident that the father will be able to maintain a meaningful relationship with the children.
In paragraph 103 of the second Family Report Mr J stated –
“[Ms Nisic] presents as a strong and capable parent. It is noted that she has managed the intervening period between assessments without regular professional support. She appears resilient and she has a demonstrated capacity to readjust to change. [Ms Nisic] continues to enjoy a well-established presence in [Town B], and her business appears to be growing. She is bonded with her family in [Country C], and she seems to have the capacity to travel to spend physical time with them. Likewise, her family have travelled to Australia, and they may be able to holiday together in a location somewhere between the two countries.”
This evidence is unchallenged. I accept this evidence.
Mr J noted (in paragraph 105) that the mother has a likeable personality and the mother has two significant social outlets – namely, her commitment to animal care and her enjoyment of board games. Mr J also pointed out that if the mother chose to rebalance some of her time – that the mother "would likely increase her social network". He also noted that the mother does have the capacity to access community and professional support networks as required.
I am at a loss to explain why it is the case that the mother seeks to reduce the father's time with the children – in the event that the children remain living in Town B. I did listen to her explanations in the witness box. Those explanations are unconvincing. The conclusion that I have reached is that the mother’s submission that the children’s time with the father should be reduced if the children remain living in Town B is indicative of the mother’s true attitude towards the father and towards the children’s relationship with the father. This attitude from the mother is one of the findings that underpins the Court’s conclusion that the children’s meaningful relationship with the father is not likely to be maintained in the event that the children are living in Country C. I accept the father’s evidence and his case that the mother has persistently resisted the father’s attempts to increase the children’s time with him or to arrange make up time. I also accept the father’s evidence that the mother also did not take sufficient steps to clearly establish quality holiday time between the children and the father. In this regard I note paragraph 17 of the written submissions of Mr McGregor, counsel on behalf of the father. I agree with those submissions.
I note what Mr J had to say about the mother’s argument that the children’s time with the father should be reduced if the children remain living in Australia (paragraph 103 of Mr J’s second report). He said that if the children continue to live in Australia – there seems to be no substantial benefit to the children reducing their time with Mr Keitel. I would go so far as to say that there is no evidence that there would be any benefit whatsoever to the children in reducing their time with Mr Keitel in the event they remain living in Australia.
Mr J finalised his most recent Family Report as follows –
“114. The current time structure appears to have created a solid foundation for the children, and in my opinion, given the observable parenting dynamics, the parents could work towards more equitable time. Noting the comments made in the previous family report, it might be worth reinforcing that ultimately, [Ms Nisic] and [Mr Keitel] will determine the outcomes for the children, not the structure agreed to or determined by the Court.
115. Nevertheless, again for completeness given [Mr Keitel’s] proposals, it might be worth directing the Court to comments made in the previous report in relation to substantial significant time and shared equal time. In my opinion, shared equal-time arrangements under cooperative circumstances, tend to increase stability and allow the children to view each home with a sense of ownership and permanency. Likewise, introducing longer blocks of time also allows both parents to be involved in both day-to-day issues and substantial parenting decisions. In my opinion, stretching blocks of time also tends to equalise the benefits and obligations for both parents.”

Mr J followed these comments with his recommendations where he restated his opinion that the children should remain living in Town B and be permitted to travel on holidays to Country C with the mother.
Mr J has stated his very clear opinion in two Family Reports written two years apart that, within his particular area of expertise, his recommendation is that the children remain living in Town B and that the children have the benefit of regular and substantial time with both parents. Mr J’s opinion is only one factor for the court to take into account.
SECTION 60CC(3)(A)
I have already referred to the children's stated views and had regard to their age and maturity. Some weight can be given to those views, but such weight would only be limited.
SECTION 60CC(3)(B)
Both children enjoy a close, loving and meaningful relationship with both parents. I accept the evidence of the father that the children also have a good relationship with the paternal family in Town B and other parts of Queensland. The children also appear to have a loving relationship with the extended members of the maternal family in Country C.
SECTION 60CC(3)(C)
Both parents have taken every opportunity to spend time with and communicate with the children. As to participating in decisions about major long-term issues – both parents have wanted to be involved. I accept the father's evidence that the mother has tended to dominate the landscape in relation to such decision-making. The father is very concerned as to what would occur (in relation to decision-making regarding the children) if the mother were granted permission to relocate the residence of the children to Country C.
It is abundantly clear to the Court that the mother is of the view that her parenting and organisational skills are superior to those of the father's. The mother has somewhat come to terms with the fact that the father parents in a different way to her. This is certainly encouraging.
SECTION 60CC(3)(CA)
Both parents have fulfilled their obligations to maintain the children.
SECTION 60CC(3)(D)
This subsection is only relevant in the event that the mother is granted permission to relocate the residence of the children to Country C. In that event, the likely effect on the children of their separation from the father will mean, inevitably, that his involvement in their lives will be significantly reduced. The children currently live five nights per fortnight with the father. The uncontested evidence of Mr J (contained in paragraph 102 of his second report) is that:
"…There are significant implications for the children being able to maintain their parental relationship with [Mr Keitel], and meaningful regular time would be compromised."
This opinion expressed by Mr J is similar to the opinion he expressed in the first Family Report. At paragraph 108, Mr J stated, inter alia – “The children have enjoyed substantial, significant, regular time with [Mr Keitel] since the final separation and they expressed a wish to spend more time with him, not less. Reducing their time so significantly, would in my opinion, have a detrimental impact.”
SECTION 60CC(3)(E)
In the event that the children are living in Country C there will be many practical difficulties and expenses involved in organising for the children to spend time with the father and to communicate with the father. Those difficulties and expenses will affect the children's right to maintain personal relations and direct contact with their father on a regular basis.
There was evidence in relation to the likely cost of travel and proposals concerning who would pay for the cost of travel in the event the children were living in Country C. No matter what way one looks at it, there will be many practical difficulties and many expenses involved in order to facilitate the children spending time with the father – should the children be living in Country C.
If the children remain living in Town B there will be no practical difficulties and there will be no extra expenses involved in the children spending time with both the father and the mother.
SECTION 60CC(3)(F)
Both the mother and the father have the capacity to provide for the needs of both of these children – including the emotional and intellectual needs of the children. There is no evidence or argument to the contrary.
SECTION 60CC(3)(G)
There is a cultural dimension to this case. The mother was born in Country C. The mother is, understandably, keen for the children to learn the Country C language and to experience as much Country C culture as possible. The father is very supportive of this approach. The father is supportive of the children learning the Country C language and he is supportive of the children travelling to Country C on a regular basis with the mother in order to maintain relationships and ties with the maternal family.
Of course, the mother wishes to immerse the children in the Country C culture to such an extent that she seeks orders of the Court that the children be permitted to live in Country C. The cultural aspect is one factor for the Court to consider in making this best interests determination.
During the course of the relationship, the children travelled to Country C with the mother and the father in 2014 and 2017. Since the end of the relationship, the children have travelled to Country C on two further occasions – once in 2019 and once at the end of 2022 and beginning of 2023. That final trip was pursuant to an order that was made by the Court with the consent of the father. The fact that the parents travelled together to Country C on several occasions during the course of the relationship indicates to the Court that both parents will continue to encourage the children to learn more about their Country C heritage. The father made the point in the course of his evidence that his own surname is of Country C origin. I accept that the father is genuine in his approach to this issue.
At the end of the evidence in this trial (and prior to the provision of written submissions) the Court heard an interlocutory application brought by the mother for permission to travel to Country C for a holiday with the children in August/September 2023. The father put forward a position that it would be better for the children to stay in Australia – on the basis that, in the event the Court determined that it was in the best interests of the children to move permanently to Country C – it would be important for the children to remain in Australia and spend as much time with the father before their departure on a permanent basis. Having heard argument from both sides, I came to the conclusion that it was in the best interests of the children to travel to Country C with their mother for a visit in 2023 – as sought by the mother.
SECTION 60CC(3)(H)
This subsection is not relevant in this case.
SECTION 60CC(3)(I)
Both parents have an excellent attitude towards the children. Both parents have fully embraced the responsibilities of parenthood and both parents have demonstrated this by their actions since the time that the children were born.
SECTION 60CC(3)(J)(K)
Earlier in these reasons for judgment, I have fully canvassed, to the extent that it is necessary to do so within the context of this case, the evidence relating to family violence.
SECTION 60CC(3)(L)
In the circumstances of this case, I do not consider s 60CC(3)(l) is relevant.
SECTION 60CC(3)(M) – ANY OTHER FACT OR CIRCUMSTANCE THAT THE COURT THINKS IS RELEVANT
The children are very well settled in their school. Both children attend school in Town B. The children have their friends and their friendship groups at school and in Town B. The children are also involved in extracurricular activities in Town B. One aspect of the evidence that was stressed during the course of the trial is the fact that the father is the coach for Y's sports team. I note that the father attends nearly all of the children's school-related activities including: religious services, school balls, sports carnivals, cross-country, assemblies, parent teacher interviews and also some excursions. If the children remain living in Town B, both parents can continue to enjoy this kind of involvement with the children's school. Obviously that would not be the case if the children are living in Country C.
I note that the father is able to name the children's friends. X's has several best friends. In relation to young Y – he and his best friend have been at the same school since kindergarten. They are also on the same sports team that the father coaches. Y has several other friends. I accept all of this evidence from the father.
The mother does not name any of the children’s friends in her evidence. In fact, the mother seeks to downplay the nature of those friendships, and, I infer, the importance of those friendships. This is unfortunate. In this regard I note, in particular, paragraph 291 of the mother’s affidavit.
Both parents accept that the children's school reports show good results. The children are well behaved. The children are a credit to both their mother and their father.
The children have lived all of their lives, thus far, in Town B. The paternal family lives in or near Town B. The children have close familial bonds of love and affection with the members of the paternal family. I accept the father's evidence in this regard.
The children have also made connections with the maternal family because of their visits to Country C. The maternal family are farmers. It is apparent from the evidence that the maternal family have farmed the same land for generations. If the children went to live with the mother in Country C they would undoubtedly be able to spend more time with the Country C members of their family and become even more engrossed in the culture of Country C.
I had the chance to observe both parents in the witness box at some considerable length. I have come to the conclusion that the father is child-focused at all times. This cannot be said in the case of the mother. I have come to the conclusion that the mother lacks insight. This is apparent on a number of levels. One of the obvious examples of the mother's lack of insight relates to her desire to reduce the children's time with the father should the children remain living in Town B. The mother was cross-examined about this issue. Her answers are telling. The mother's response was – if she is required to remain living in Australia (with the children) – the mother wants to reduce the children's time with the father from five nights per fortnight (in accordance with the existing order) to four nights per fortnight. The mother said that the father has his family here, and she has “no one”.[20] This evidence from the mother is worryingly similar to the comments made by X to Mr J. In this regard I note paragraph 88 of Mr J’s second report.
[20] Page 45 of Tuesday 4 July 2023 Transcript, lines 19-20; page 74 of Tuesday 4 July 2023 Transcript, line 10.
The mother’s answer was not child-focused. It was the opposite of "child-focused". The mother's answer was all about the mother's own wishes and her own perceived interests. This lack of insight is a matter of concern for the Court. If the mother was living in Country C with the children, the mother's lack of insight could manifest itself in a myriad of ways and, owing to the distance between the parents (in that scenario), it is likely to have an adverse impact on the children's relationship with the father. The mother's evidence that the children's wishes have to be respected if they do not wish to talk to the father on the telephone has to be considered in the light of the Court's conclusion that the mother lacks insight. Between August and November 2022, X stopped talking to the father on FaceTime. I have referred to this earlier in these reasons for judgment. The mother did not have the skills to remedy the situation between August and November 2022. This is a period of approximately three-four months.[21]
[21] The precise dates in those months were not provided to the Court.
I also note the father's report that he gave to Mr J that – "7:30 pm on Tuesday is now the only time [Ms Nisic] can fit me in. I'm not consulted I'm just told and then I have to adjust."[22] This relates to the FaceTime communication between the father and the children. On that issue, and on other issues referred to in the father's evidence, the mother has a definite tendency to dictate to the father what the arrangements are going to be. I accept the father's evidence that he is not consulted on certain issues and the mother just tells him the way it's going to be – and the father has to adjust. This dynamic between the parents would not augur well for the children's relationship with the father in the event the children were living in Country C. If the children are living in Town B and spending substantial time with both parents on a regular basis – that dynamic between the parents becomes less of a concern for the Court – at least in relation to the possible impact that the dynamic could have on the ability of the father to communicate with the children and, hence, the relationship between the father and the children. To the extent that there is any discrepancy between the mother and the father in relation to this evidence – I prefer the evidence of the father.
[22] See paragraph 69 of Mr J's second Family Report.
SECTION 61DA EQUAL SHARED PARENTAL RESPONSIBILITY
This is a case where it is in the best interests of the children for the parents to have equal shared parental responsibility. The parents and the ICL agree on this point. The mother had, at one stage, sought a sole parental responsibility order in the event that she was granted permission to relocate with the children to Country C. The mother withdrew that argument. Whatever the outcome in these proceedings, the mother's position now, is that there should be equal shared responsibility.[23]
[23] In the context of this case, it is not necessary for the Court to decide whether or not the presumption of equal shared parental responsibility in s 61DA was actually rebutted. Whatever may be the interpretation of that section – the parents and the ICL agree that there should be an order for equal shared parental responsibility. The Court agrees with their submissions.
SECTION 65DAA
Because the parties agree that the parents are to have equal shared parental responsibility – the Court is required to consider the question of equal time and the question of substantial and significant time. Section 65DAA(1) states:-
“Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.”
(notes omitted)
It is helpful to include, at this point in time, the subsection relating to substantial and significant time. Section 65DAA(2) and s 65DAA(3) state -
“Substantial and significant time
(2)      Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)       the time the child spends with the parent includes both:
(i)        days that fall on weekends and holidays; and
(ii)       days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)        the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.”
(notes omitted)
In Taylor & Barker (2007) FLC 93-345 – the Full Court of the Family Court set out the approach to be taken when a Court is considering s 65DAA (relating to "equal time" or "substantial and significant time") in a case (such as the present) where one of the parties seeks an order permitting relocation. Bryant CJ and Finn J stated at [81] – [83] as follows –
“81.We acknowledge that his Honour’s approach to the application of s 65DAA, which we have endorsed, does require that the matters which the court has to consider under that section (being “equal time” or “substantial and significant time”), must initially be considered without regard to any relocation proposal which might also be before the court. However any relocation proposal will then have to be balanced against the option of “equal time” or of “substantial and significant time” if either of those options has been found to be in the child’s best interests, with the outcome normally emerging from a consideration of whether such an arrangement was “reasonably practicable”.
82.We also acknowledge that this approach involves, at least initially, treating the relocation proposal as a separate and discrete matter, and that at least prior to the 2006 legislative amendments, the preferred approach was not to consider a relocation proposal separately from other proposals in relation to the child’s living arrangements.
83.However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or “substantial and significant time” with each parent.”
Hence, the Court is required to initially consider "equal time" or "substantial and significant time" and then this Court will have to balance the mother's relocation proposal against the option of “equal time" or of "substantial and significant time" – if this Court concludes that either of those options are in the best interests of the children and if either of those options is reasonably practicable (MRR v GR (2010) 240 CLR 461 at [13] – [20]).
The Court is required to consider whether the children spending equal time with each of the parents would be in the best interests of the children. Mr J has, to some extent, addressed the question of equal time in his two Family Reports. Mr J has made several mentions of equal time[24] in both reports. I will refer to some of those paragraphs here.
[24] and substantial and significant time.
In his first report at paragraph 47, Mr J records the mother as reinforcing to him:- “… her opinion that the children will benefit from both parents being substantially involved in their future parenting”.

At paragraph 104 of his first report, Mr J noted:- “… that both parents have demonstrated their commitment to the children, they appear invested in the children’s future welfare, and they both appear to have adequate parenting skills and capacity.”
In paragraph 108 of his first report. Mr J stated, inter alia:- “The children have enjoyed substantial, significant, regular time with [Mr Keitel] since the final separation and they expressed a wish to spend more time with him, not less.”
In paragraphs 111 and 112 of his first report. Mr J stated –
“111. If the children continue to reside in [Town B], it may be possible to increase their time with [Mr Keitel]. Essentially the barriers and success factors tend to be similar for both shared equal time and substantial significant time, and there are benefits and disadvantages to both structures for children and parents. Ultimately, whether the future arrangements are successful or not is likely to depend on each adult’s ability to remain child-focused. Both parents reside in [Town B], and there appears to be no physical barriers regarding school and extracurricular activities.
112. In the absence of conflict, the children are likely to adjust to whatever arrangements are agreed by the parents or determined by the Court. Nevertheless, the pressures associated with implementing a successful shared equal time may be greater. Parents often need to be more agile, connected, and responsive to the children’s needs.”
In his second report, Mr J referred to the question of equal time and parenting in various paragraphs – including the following paragraphs:-
“113. If the children continue to live in Australia, there seems to be no substantial benefit to them in reducing their time with [Mr Keitel] and doing so would appear contrary to their expressed wishes. Generally, [Ms Nisic] and [Mr Keitel] appear to share a cooperative day-to-day parental relationship. However, based on the presenting evidence, whilst there appears to be a reasonable intention to share other aspects associated with longer-term welfare and development, this could be an area for both parents to work on.
114. The current time structure appears to have created a solid foundation for the children, and in my opinion, given the observable parenting dynamics, the parents could work towards more equitable time. Noting the comments made in the previous family report, it might be worth reinforcing that ultimately, [Ms Nisic] and [Mr Keitel] will determine the outcomes for the children, not the structure agreed to or determined by the Court.
115. Nevertheless, again for completeness given [Mr Keitel’s] proposals, it might be worth directing the Court to comments made in the previous report in relation to substantial significant time and shared equal time. In my opinion, shared equal-time arrangements under cooperative circumstances, tend to increase stability and allow the children to view each home with a sense of ownership and permanency. Likewise, introducing longer blocks of time also allows both parents to be involved in both day-to-day issues and substantial parenting decisions. In my opinion, stretching blocks of time also tends to equalise the benefits and obligations for both parents.”
None of this evidence from Mr J was challenged. In particular, I note the opinion stated by Mr J at paragraph 115 that shared equal time arrangements, under cooperative circumstances, tend to increase stability and allow the children to “view each home with a sense of ownership and permanency.”
Both parents have a lot to offer their children. The children have been living five nights per fortnight with the father since 26 November 2021. This seems to work very well.
In my view, the weight of the evidence points towards a conclusion that it is in the best interests of these children to spend equal time with each of the parents.
IS EQUAL TIME REASONABLY PRACTICABLE?
Considering s 65DAA(1)(b), the Court must have regard to the matters raised in s 65DAA(5). That subsection states –
“(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.”
(notes omitted)
The parents live in Town B. The parents met in Town B – after the mother had migrated to Australia from Country C. The parents live only two minutes’ drive apart.[25]
[25] Paragraph 11 of the father's trial affidavit.
Both the mother and the father have the capacity, and they will in the future have the capacity, to implement an equal time arrangement for the children. Both parents are highly intelligent. Both parents have good parenting skills. Each parent acknowledges this fact about the other parent. Mr J commented favourably on the parenting skills and parenting capacity of both parents.[26]
[26] Including in paragraph 104 of his first report.
As to the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an equal time arrangement – I have full confidence that they both have the necessary capacity. It is important to note in particular paragraphs 89, 91 and 92 of Mr J's most recent report, keeping in mind that these observations are made by Mr J of the mother, the father, the children and Ms G together in his room at Suburb K as recently as 7 March 2023. In paragraph 89, Mr J described the parents as being "highly cooperative during the assessment". He said that the parents communicated well and the parents negotiated adjustments to the schedule to meet their needs. Unlike many parents in this jurisdiction – the parents in this case were relaxed spending time in the same room and the parents shared responsibility for the children without any incident. Further, Mr J stated his opinion that there was no appearance of a dispute between the parents when they were together with the children and, importantly, the mother accepted Ms G's presence. The children were both relaxed and they moved freely between their parents. This is a very important point in relation to a consideration of whether an equal time order will be reasonably practicable. The view that I have formed is that both the mother and the father have mutual respect for each other – both as individuals and as parents. It may not have been the case initially, but at this point in time, the mother has accepted the fact that the father has a different parenting style to her own parenting style. Mr J noted that the observations that occurred in March 2023, during the day (in relation to the parents) were that the parents were exceptionally positive and child focused.
As previously referred to in these reasons – the father has had some concerns about the mother dictating certain things to him. But the conclusion that I have reached is that the father has, in a deft manner, been able to handle this dynamic. I get the impression it is more to do with the mother's personality. The mother has a direct manner about her. The issue was raised by the father. The mother’s tendency to dictate parenting arrangements to the father is much more likely to be a problem in the event the children and the mother were living in Country C.
Both parents have included some examples of their ability to communicate and the manner of their communication in their respective trial affidavits. The mother sought to highlight an inability to communicate. The examples contained in paragraph 305 of the mother’s trial affidavit in fact shows quite respectful communication between the parents. It is obvious that the parents do not agree on every issue. Parents never do. Even though there may, at times, have been some strained communication between the parents – that in no way means that they do not have the ability and the capacity to communicate appropriately for the benefit of the children. They have been doing just that. The children already live five nights per fortnight with the father. On numerous occasions, the parents have been required to communicate during that period of time since the order was made for five nights per fortnight by a Senior Judicial Registrar on 26 November 2021. I reject any contentions, arguments or suggestions by the mother that the parents are not able to adequately communicate. The objective and unchallenged evidence of Mr J when he observed the parents in the same room in March 2023 makes it abundantly clear to the Court that these parents do have the ability to communicate.
In relation to paragraph 268 of the father's affidavit – I note and accept that evidence where he has listed some examples of the parents' ability to communicate and work together.
As to the impact that an equal time arrangement would have on the children – the view that I have formed is that there will be a positive impact. Both children enjoy spending time with both parents. I note that the children are still relatively young. In paragraph 87 of his most recent report, Mr J recorded that the children themselves volunteered "If we stay in Australia we would like one week with Mum and one week with Dad.". The unchallenged evidence of Mr J (paragraph 115 of his second report) is that shared equal time arrangements, under cooperative circumstances, tend to increase stability. This is a positive for the children.
SECTION 65DAA(5)(E)
The Court is required to consider "such other matters as the court considers relevant" concerning the question of reasonable practicality.
Throughout these reasons I have made references to the mother's employment, the mother's friends, the mother's health and the proposals in relation to international travel. The mother has a successful business based in Town B. The mother told the Family Report writer in 2021 that if she was unsuccessful in her relocation application and remained living in Town B – "I would be upset because I believe it would be better for me, and the children, but I am the type of person who will make the most of things. I do have a life, a job, and friends in the [Town B] community." As noted earlier in these reasons for judgment – this admission made by the mother to Mr J is highly likely to be truthful. As I noted earlier, the mother has sought to downplay the number of friends that she has in the Town B community. I do not accept that the mother is socially isolated in Town B. The mother has lived in Town B for at least 14 years. The mother has a good deal of social interaction both through her employment and, I find, through other outlets.[27]
[27] Noting paragraph 39 of Mr J’s first report.
The accommodation arrangements for the both parents in Town B is adequate and appropriate.
I have already provided reasons in relation to the question of the mother's mental health. I note, in this regard, that Ms H highlighted the fact the mother's depressive symptoms have only "minor impacts" upon the mothers' daily functioning. The mother continues to be able to engage in a meaningful way with the children and (as noted by Ms H) there is no evidence of the mother's emotional or social withdrawal. The question of the mother's mental health is only one of the considerations for the Court when determining this question of reasonable practicality of an equal time arrangement in Town B.
One of the other aspects of reasonable practicality is, in my view, the plans and proposals of the parties and, indeed, the ability of the mother, to travel regularly to Country C with the children in the event that the mother and the children remain living in Town B.
I have also taken into account the fact that the father and Ms G may, in 12 months’ time, consider moving in to live together. This is a mere contingency at this point in time. I am not convinced that this will occur. If it does occur – I remain unconcerned. The evidence of the father, which I accept, is that the children interact well and appropriately with Ms G and Ms G's children – including when the Ms G’s family spends overnight time at the father's residence – and the subject children are present. I accept that this is different to living full-time with Ms G’s children in the household. But, at this point in time, it is a possibility only and it is something I have taken into account in considering the question of reasonable practicality – and, for that matter, best interests.
The conclusion I have reached in relation to s 65DAA(1)(b) taking into account s 65 DAA(5) is that it is reasonably practicable for the children to spend equal time with each parent.
In those circumstances, it is both in the best interests of the children and it is reasonably practicable for these children to spend equal time with each of their parents.
The two questions posed by s 65DAA(1)(a) and (b) have been answered in the affirmative by the Court. Hence, the Court is required to consider making an order for equal time with each of the parents (s 65DAA(1)(c) and MRR v GR (2010) 240 CLR 461 at [13]).
My conclusion that it is reasonably practicable for the children to live in a week about shared care arrangement with the parents – obviously only applies in the event that the children remain living in the town of Town B. If the children were living in Country C with the mother – it would not be reasonably practicable. This goes without saying. The same would apply in respect of substantial and significant time. If the children were living in Country C with the mother, it would not be reasonably practicable for the children to spend substantial and significant time with the father. The father intends on remaining living and working in Town B. The father only gets four weeks leave per year. There is the potential that he may be able to access some other entitlements and spend some further periods of time in Country C to see the children – but the impression I had from the father's evidence is that that is far from certain.
I have considered the mother’s proposal to relocate the residence of the children to Country C. There are positives connected to the mother's proposal. The children would have the opportunity to become fully immersed and experience life in Country C. The children would have the opportunity to develop more fully their ties and their relationships with the members of the maternal family. Further, the mother herself would be happier if she were living in Country C. I have considered the evidence relating to the mother’s mental health. I find that the mother’s parenting capacity remains intact – despite any concerns highlighted by Ms H. This is the upshot of Ms H’s evidence. I also consider it is particularly noteworthy that in March 2023 – at the time of the second family report interviews – the mother did not mention any concerns relating to her mental health to Mr J. This is telling.
Having weighed all of the evidence and balanced the proposals – the view that I have formed is that the mother's proposal to relocate the residence of the children to Country C is not in the best interests of the children. The benefits of the mother's relocation proposal are, in my view, vastly outweighed by the benefits to the children if they remain living in Town B and live in an equal time arrangement with both parents. Earlier in these Reasons for Judgment I have made many findings that support this conclusion. By way of summary (and this is not an exhaustive list) I note the following findings:-
(a)the children were born and have lived all their lives in Town B;
(b)the children have all of their school friends and other friends in or near Town B;
(c)the children have their extracurricular activities in or near Town B;
(d)the children have the paternal family living in or near Town B;
(e)the children's father lives in Town B;
(f)the mother will remain in Town B if the children are there;
(g)for the reasons I have stated earlier, I am not satisfied that the mother would ensure that the children would communicate regularly with the father via electronic means in the event that the children were living in Country C. The recent experience relating to the child X is particularly concerning. The mother was either unwilling or unable to persuade X to communicate with her father, via FaceTime during the months of August, September, October and November 2022;
(h)the mother has largely dictated the parenting arrangements relating to the father’s time with the children; the father’s electronic communication with the children; the father’s holiday time with the children etc – and this aspect of the parenting relationship would be a much greater concern to the Court if the mother were living with the children in Country C;
(i)the mother has displayed a lack of insight into the needs of the children – including by seeking to reduce the children’s time with the father if the children remain living in Town B despite the fact that the overwhelming weight of the evidence leads to a conclusion that an increase in time between the children and the father will be in their best interests should the children remain living in Town B;
(j)for the reasons stated earlier, I have come to the conclusion that the children’s meaningful relationship with the father is not likely to be maintained if the children are living in Country C;
(k)significant costs and expenses would be incurred by the parents in facilitating the father's time with the children in the event the children were living in Country C;
(l)both parents have established professional and social networks in Town B;
(m)the mother's proposal that the father could save accommodation money by living or staying with her family in Country C when he visited – is not a proposal that either the father or the Court thinks is appropriate; and
(n)if the mother and the children are living in Town B – the mother will have the benefit of an order permitting her to travel with the children to Country C for holidays twice per year.
In terms of Final Orders – there will need to be orders permitting the mother to travel to Country C with the children for holidays on two occasions each year. As to the timing of those trips, I will hear further submissions in this regard.
CONCLUSION
It will be apparent that the Court has balanced the mother’s relocation proposal with the option of equal time. The Court has also found that an equal time Order operating in Town B is in the best interests of the children and is reasonably practicable. In balancing those two options (the mother’s relocation proposal and an equal time Order in Town B)[28] the Court has come down in favour of an Order for equal time living arrangements for these two children with their parents in Town B. The overwhelming weight of the evidence leads me to conclude that the best interests of the children will be served by an order whereby the children remain living in Town B where they can live with both of their parents in an equal time arrangement.
[28] This is also the proposal of the father and the Independent Children’s Lawyer.
I will give the parties an opportunity to provide draft orders to reflect the Reasons for Judgment.

I certify that the preceding one hundred and sixty-four (164) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Howard.
Associate:
Dated: 28 February 2024

File number(s):	BRC 1547 of 2020
Judgment of:	HOWARD J
Date of judgment:	28 February 2024
Catchwords:	FAMILY LAW – PARENTING – Where the children were born in Queensland and have always lived in Town B with the mother and the father – Where the mother was born in Country C and seeks the permission of the Court to relocate the residence of the children to Country C – Where the father opposes the application and seeks an order that the children remain living in Town B – Best interests – Parental responsibility – Equal time – Mother’s application for permission to relocate the residence of the children to Country C refused.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60DA, 65DAA Mental Health Act 2016 (Qld)
Cases cited:	Adamson & Adamson [2014] FamCAFC 232 AMS v AIF (1999) 199 CLR 160 Baghti & Baghti & Ors [2015] FamCAFC 71 Beckham v Desprez (2015) 55 Fam LR 310 Briginshaw v Briginshaw (1938) 60 CLR 336 Browne v Dunn (1893) 6 R 67 Cox v Pedrana (2013) 48 Fam LR 651 Eagle & Scarlett (No.2) [2020] FamCAFC 291 Goode & Goode (2006) FLC 93-286 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Johanson & Johanson [2022] FedCFamC1A 74 LC v TC (1998) 23 Fam LR 75 Masson v Parsons (2019) 266 CLR 554 MRR v GR (2010) 240 CLR 461 Sayer v Radcliffe [2012] FamCAFC 209 Taylor & Barker (2007) FLC 93-345 U v U (2002) 211 CLR 238 Whisprun Pty Ltd & Dixon (2003) 200 ALR 447
Division:	Division 1 First Instance
Number of paragraphs:	164
Date of last submission/s:	16 August 2023
Date of hearing:	4, 5 and 6 July 2023
Place:	Brisbane
Counsel for the applicant mother:	Mr Alexander and with him Ms Ferguson
Solicitor for the applicant:	Wilsons The Family Lawyer
Counsel for the respondent:	Mr McGregor
Solicitor for the respondent:	Damien Greer Lawyers
Counsel for the Independent Children’s Lawyer:	Ms Wardle
Solicitor for the Independent Children’s Lawyer:	Forest Glen Lawyers

BRC 1547 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS NISIC Applicant
AND:	MR KEITEL Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	HOWARD J
DATE OF ORDER:	28 FEBRUARY 2024