Rouanet & Mikatos - [2022] FedCFamC1F 713

Federal Circuit and Family Court of Australia
(DIVISION 1)
Rouanet & Mikatos [2022] FedCFamC1F 713

File number: CAC 596 of 2022

Judgment of: GILL J

Date of judgment: 19 September 2022

Catchwords: FAMILY LAW – PARENTING – Where the mother voluntarily returned to Australia from Country D following the father’s commencement of Hague Proceedings – Where the mother seeks orders to remain residing in City F with the child – Where the father seeks orders for the child to relocate back to City B – Consideration of the best interests of the child – Early stage of childhood development and establishment of meaningful relationships with both parents – Desirability of high frequency of contact with both parents.

LegXtion: Family Law Act 1975 (Cth) Pt VII, s 60B

Cases cited:
Keats & Keats [2016] FamCAFC 156

Marsden & Winch (No. 3) [2007] FamCA 1364

Morgan & Miles [2007] FamCA 1230

MRR v GR [2010] 240 CLR 461

Taylor & Barker (2007) FLC 93-345

U & U (2002) 211 CLR 238

Division: Division 1 First Instance

Number of paragraphs: 49

Date of hearing: 16 September 2022

Place: City B

Solicitor for the Applicant: Vozella Lawyers

Counsel for the Respondent: Ms Smallwood SC

Solicitor for the Respondent: Schetzer Papaleo Family Lawyers
ORDERS

CAC 596 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS ROUANET

Applicant

AND:
MR MIKATOS

Respondent

order made by:

GILL J

DATE OF ORDER:

19 September 2022

THE COURT ORDERS THAT:
1.Ms Rouanet (“the mother”) and Mr Mikatos (“the father”) have equal shared parental responsibility for the child, X (“X”), born in 2019.
2.X shall live with the mother.
3.Subject to written agreement between the parties otherwise, from 9 October 2022, X will spend time with the father in the following manner:
(a)By “Facetime” as agreed but in the absence of agreement on each Tuesday;
(b)Each alternate week commencing on 9 October 2022 from the conclusion of childcare, or if X is not in childcare from 3.30 pm, on Friday until the following Sunday at 3.30 pm;
(c)Each week from the conclusion of childcare, or if X is not in childcare from 3.30 pm, Wednesday until 9.00 am Thursday;
(d)Such other time as may be agreed between the parties; and

4.For the purposes of changeover, subject to an alternate agreement in writing, changeover shall occur in City B/City at X’s childcare or if X is not in childcare, by the party with whom X is spending time delivering X to the other party’s home in City B/City C.
5.Until further order, the parties, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child X (female) born in 2019 from leaving the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this Order by placing X’s name on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rouanet & Mikatos

Details

AGLC: Rouanet & Mikatos [2022] FedCFamC1F 713
Case: [2022] FedCFamC1F 713
Decision Date

CaseChat Overview and Summary

This case involved a dispute between Ms Rouanet (the mother) and Mr Mikatos (the father) regarding the residence and parenting arrangements for their child, X. The mother sought orders to remain residing in City F with the child, while the father sought orders for the child to relocate back to City B. The Federal Circuit and Family Court of Australia (Division 1) was tasked with considering the best interests of the child in determining the appropriate parenting arrangements.

The court identified two main areas of consideration in determining the best interests of the child. The first was the benefits of meaningful relationships for the child, particularly with the father, and how these relationships would be differentially available depending on whether the child remained in City F or returned to City B. The second area of consideration was the impact on the mother's legitimate interest in determining where she would live and her mental well-being if not able to remain in City F. The court also considered the differential in support for the mother between City F and City B, as well as the father's offer of financial assistance and temporary accommodation.

In making its decision, the court considered the Objects and Principles of the Family Law Act 1975 (Cth), particularly the importance of 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. The court also considered the importance of weighing the probabilities of competing claims and the likely impact on the children in the event that a controversial assertion is acted upon or rejected.

The court ultimately determined that the best interests of the child would be served by an equal shared parental responsibility arrangement, with the child residing with the mother and spending time with the father in City B. The court adopted the Child Impact Report's proposal for three occasions of contact per fortnight, in addition to the FaceTime contact proposed by the mother. The court also made orders to prevent the removal of the child from Australia and to ensure that the father provided financial assistance to the mother and child.

In summary, the court balanced the competing interests of the parties and considered the best interests of the child in making its decision, ultimately determining that the child's best interests would be served by an equal shared parental responsibility arrangement, with the child residing with the mother and spending significant time with the father in City B.

Orders