Nisic & Keitel

Case [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…

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AGLC
Nisic & Keitel [2024] FedCFamC1F 96
Case
[2024] FedCFamC1F 96
Decision Date

CaseChat Overview and Summary

In the matter of Nisic & Keitel, the parties involved were Ms Nisic, the applicant, and Mr Keitel, the respondent. The core dispute centred on Ms Nisic's application to relocate with their children from Town B, Queensland, to Country C, a request that Mr Keitel opposed. The matter was adjudicated by the Federal Circuit and Family Court of Australia, Division 1. The central legal issues the court had to address involved determining whether the proposed relocation would serve the children's best interests and whether an alternative arrangement, such as equal parenting time, could be more beneficial. Additionally, the court had to consider the implications of any relocation on the children's relationship with both parents, as well as the parents' respective rights and responsibilities.

The court meticulously examined the evidence provided, including expert reports and testimonies from both parents. It noted that while the mother's mental health condition had minor impacts on her daily functioning, it did not significantly impair her parental capacity. The court also highlighted that the mother had acknowledged the children's attachment to their father and the potential difficulty of separation. The court was particularly influenced by the mother's candid admission that she had a fulfilling life, job, and social connections in Town B, which suggested that the primary motivation for the relocation was her personal desire rather than a necessity for the children's well-being. Based on these findings, the court concluded that maintaining the children in Town B, with an arrangement ensuring equal parenting time, was in their best interests. This decision aligned with the views of the father and the Independent Children's Lawyer.

In its decision, the court emphasised the paramount importance of the children maintaining a meaningful relationship with both parents and protecting them from harm. The court decided against making specific findings on allegations of historical family violence and alcohol consumption, as neither parent pursued these issues as significant risk factors during the proceedings. The court also referenced established legal principles, such as those from the High Court's decision in Whisprun Pty Ltd & Dixon, to justify its approach to unpursued allegations. Ultimately, the court ordered that the children remain in Town B and directed the parties to propose final orders reflecting these reasons. If the parties could not agree on the wording, the matter was to be listed for further submissions.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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”.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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…”