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 the purpose of preventing removal of X from the Commonwealth of Australia in breach of these Orders.
6.Within 72 hours, the father serve a sealed copy of these Orders on the Australian Federal Police Operations Coordination Centre (GPO Box 401, City B, ACT 2601) and it is requested that the Australian Federal Police give full force and effect to this Order as a matter of urgency.
7.The parties interim applications and responses are otherwise dismissed.
8.The proceedings are listed for directions on 29 November 2022 at 10.00 am, at which stage the proceedings will be an in person appearance unless a party is otherwise excused from appearing in person.
Notations:
9.The father has represented that he will make payments for the assistance of the mother and X, of $600 per week for rent and accommodation and $100 per week for other expenses.
10.The father has agreed to vacate his home for a short period to enable the mother and X to occupy his home, while she secures her own accommodation.
11.In the event that an issue arises regarding the father’s asserted financial assistance, the mother is entitled to seek the urgent relisting of the matter for an order regarding spousal maintenance.
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 Rouanet & Mikatos has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
Background
The parties to this matter are Ms Rouanet, the applicant mother, and Mr Mikatos, the respondent father. The mother is a Country D citizen and also has permanent residency in Australia. The father is an Australian citizen. The parties did not marry. There is one child of their relationship, X (“X”) born in 2019.
The parties first met in City E, when the mother was travelling through Australia in mid-2014. They commenced co-habitation in City F in 2016. The mother asserts that they lived together in Country D with her uncle for approximately six months prior to their co-habitation in Australia.
Their relationship was characterised by moves that accompanied changes in the father’s postings with the Australian Defence Forces (“the Australian Defence Forces”), where they lived variously in City F, near Brisbane and ultimately in City B.
The mother left City B with X in late 2021 and travelled to Country D for a three-month visit. While the parents agreed to this visit, they disagreed as to an extension to that visit, and their relationship ended while the mother was in Country D in late 2021.
There then followed a dispute as to the mother’s return to Australia with X, the mother seeking an extension of the time in Country D, the father having recourse to the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) mechanisms. During this time the mother commenced proceedings in Australia to secure her remaining in Country D, but ultimately voluntarily returned in the face of ongoing Hague Convention proceedings in Country D. Prior to her return, these proceedings were listed for interim determination on 16 September 2022.
Prior to her return, the mother represented that she was to return in early 2022, but then cancelled the tickets that she had procured, asserting her intention to remain in Country D.
Ultimately, the mother and X returned to Australia in mid-2022. Although she and X and the father had been living together in City B prior to the trip to Country D, where the father currently works, the mother gave the father short notice that she would travel to City F and remain there instead. Although the father opposed such a course of action, the proceedings were not listed for interim determination until 16 September 2022.
At that stage, the mother continued to agitate orders in this Court for a return to Country D, although she relinquished this prior to the interim hearing and at the interim hearing was unable to say whether she would ultimately pursue such an object.
In the lead up to the proceedings in this Court, the father has had regular FaceTime contact with X, but has only spent face-to-face time with her on an approximately monthly basis.
While in City F, the mother has stayed with friends, continued to work remotely in the job that she secured in Country D (although she is on leave from that at present) and secured other casual work. X has commenced day care.
Material Relied Upon BY THE PARTIES
The material that the parties relied upon is set out below.
Applicant Mother
By her Outline of Case Document (Interim Hearing) filed 14 September 2022, the applicant mother relied upon:
(a)Affidavit of the mother filed 4 August 2022
(b)Affidavit of Mr G, filed 4 August 2022
(c)Affidavit of Ms H, filed 4 August 2022
(d)Affidavit of Ms J, filed 4 August 2022
(e)Minute of Interim Orders Sought, filed 4 August 2022
(f)Financial Statement, filed 14 September 2022
(g)Tender Bundle
Respondent Father
By his Outline of Case Document (Interim Hearing) filed 14 September 2022, the respondent father relied upon:
(a)Affidavit of the father filed 20 August 2022
(b)Financial Statement filed 20 August 2022
(c)Amended Response to Final Orders (containing interlocutory orders sought) filed 20 August 2022
(d)Child Impact Report by Ms K filed 1 September 2022
(e)Tender Bundle
Interim Orders Sought
The orders sought by the mother are contained in the Minute of Interim Orders Sought, filed on 4 August 2022:
1.That the Father’s application for a recovery order filed on 29 June 2022 be dismissed.
2.That the parties have equal shared parental responsibility for the child, [X] born [in] 2019 (“the child”).
3.That the Mother be at liberty to remain residing in [City F] with the child.
4.That the child live with the mother.
5.That the child spend time with the Father as follows:
a.By “Facetime” as agreed but in the absence of agreement each second day at 7.15am or 6.30pm
b.For one weekend per month to be on days and times as agreed, but in default the third Friday at 9am until 5pm Monday
c.Such other time as may be agreed between the parties.
6.In the alternative, in the event that the child’s residence is ordered to be returned to [City B], the child shall live with the mother and spend time with the father as follows:
a.By “Facetime” as agreed but in the absence of agreement on each Tuesday and Thursday
b.In week 1: from 5pm Friday to 5pm Sunday
In week 2: Wednesday from 4pm to 9am Thursday
c.Such other time as may be agreed between the parties.
7.That pursuant to section 62G of the Family Law Act 1975 a Court funded Family Report shall be prepared in relation to the parties and child and the Family Report shall be released as soon as practicable and for the purpose of this Order the parries shall comply with all reasonable directions of the family consultant including making themselves, the child and any other relevant person available at times nominated by the family consultant.
The Case Outline Document filed by the father on 14 September 2022, contains his proposed interim orders sought:
1.The parties have joint shared parental responsibility for [X] born [in] 2019 (X)
2.As and from 16 September 2022, [X] remain in [City B] to live.
3.[X] live with the parties in [City B] on an equal time basis as agreed and failing agreement on a 2/2/3 basis as follows:
a.In week one of a two-week cycle:
i.With the father, from the conclusion of childcare (or 3:30pm) on Monday to the conclusion of childcare (or 3:30pm) on Wednesday;
ii.With the mother, from the conclusion of childcare (or 3:30pm) on Wednesday to the conclusion of childcare (or 3:30pm) on Friday; and
iii.With the father, from the conclusion of childcare (or 3:30pm) on Friday to the conclusion of childcare (or 3:30pm) on Monday.
b.In week two of a two-week cycle:
i.With the mother, from the conclusion of childcare (or 3:30pm) on Monday to the conclusion of childcare (or 3:30pm) on Wednesday;
ii.With the father, from the conclusion of childcare (or 3:30pm) on Wednesday to the conclusion of childcare (or 3:30pm) on Friday; and
iii.With the mother, from the conclusion of childcare (or 3:30pm) on Friday to the conclusion of childcare (or 3:30pm) on Monday.
4.In the alternative, [X] live with the father in [City B] and spend time with the mother as agreed.
5.Notwithstanding paragraph 3 and 4, the father spend time with [X] as follows:
a.From 9.00am on 23 December 2022 to 5.00pm on 2 January 2023, with the father permitted to take [X] to Victoria during the same
b.For his birthday, from 9.00am on 11 January 2022 to 13 January 2022; and
c.Such further or other times as agreed between the parties in writing.
6.For the purposes of changeover, save for when it occurs at childcare, the party with whom [X] is spending time shall deliver her to the other party’s home.
7.Until further order, the mother and her 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 the purpose of preventing removal of [X] from the Commonwealth of Australia in breach of these Orders.
8.Within 72 hours, the father serve a sealed copy of these Orders on the Australian Federal Police Operations Coordination Centre (GPO Box […], City B, […]) and it is requested that the Australian Federal Police give full force and effect to this Order as a matter of urgency.
9.Such further or other Orders as this honourable Court deems fit.
The key issues
As at the time of the interim hearing, the mother was unable to say whether she would pursue orders to move back to Country D. The contest was as to whether the interim resolution of the matter would permit the mother and X to remain in City F or require a return to City B.
That contest took place in a context of positive and important relationships between X and each parent.
In determining X’s best interests, two areas of consideration emerged as dominant. The first is as to the benefits of meaningful relationships for X, in particular with the father, and how they are differentially available, depending on whether X remains in City F or returns to City B. That difference flows from the difference between a relationship in City F, characterised by regular FaceTime calls and up to, but not necessarily as many as one visit per month, and that in City B that would at least involve weekly face-to-face time, but on the father’s case, an equal sharing of time.
The second concerns the impact upon the mother’s legitimate interest in determining where she will live, and upon her mental well-being if not able to remain in City F, and whether arrangements contrary to that desire are reasonably practicable and the degree to which they undermine her parenting capacity. This impact draws upon the differential in support for the mother (and X) between City F and City B.
The mother is currently under the care of a psychologist who she has been attending upon by remote means (the psychologist being located in City B). The mother has a history of psychiatric conditions and, implicitly, may be taken to be needing of support both personally and as a parent. It may be taken that in addition to the usual challenges of parenthood, the mother faces further impediments from these psychological vulnerabilities.
In City F, the mother has strong support from friends. That support is both emotional and practical, with the friends exhibiting a strong practical commitment to the support of the mother. It may be observed that during the relationship the parties had recourse to City F as a place of support for the mother, for example, when the father was on posting to City L the mother travelled to and remained in City F. The mother has casual work available to her to supplement her remote work.
In contrast, the mother does not hold employment to supplement her remote work in City B (although she has previously worked in City B and her previous employer held a position open for her for an extended period whilst she was in Country D). The mother has not as yet made any serious pursuit of work in City B. The mother also asserts difficulties in finding and securing accommodation. She asserts that she will be financially compromised in City B.
Countering these issues, it firstly remains unclear what the mother’s actual financial situation is. Although she completed a Financial Statement, she omitted the income from her remote work (claiming she has presently taken some leave). Further, the father has offered to vacate his home for a period to allow the mother and X to have that accommodation on their immediate return. He has also asserted that he will pay $600 per week toward the mother’s accommodation along with a further $100 per week for other expenses. This offer is made under circumstances where there is no spousal maintenance application on foot, depriving such a representation of some certainty.
However, should the mother return in the context of such an offer, and should it not be made good, then to the extent that the mother may be required to demonstrate capacity on the part of the father to support a spousal maintenance application, the father would be prevented from asserting any less capacity than that which he offers.
While the mother raises concerns about the availability of accommodation, the evidence falls short of showing that there is a dearth of accommodation.
Although the mother points to a lack of other supports in City B, for example a lack of friends, she has previously presented strong positive views about living in City B. It must however be remembered that was in the context of an intact relationship. At the same time, there is significant support in that, even though the relationship has ended, in City B there would be a sharing of the care of X between the parents in a manner that is not currently available in City F.
This combination of supports means that it is reasonably practicable for the mother to facilitate a frequency of relationship between the father and X that is only available if they are all present in the City B area.
While the mother also pointed to the father’s employment in City B being transient (his posting with the Australian Defence Forces is due to end in late 2023) the arrangements flowing from these proceedings are temporary and likely to be finally determined prior to the end of the posting.
Legal Principles
Whether a matter is determined on an interim of a final basis, the paramount consideration is the best interests of the child. Where, as here, the proceedings are the subject of an interim determination, it is necessary to recognise that the court is not in an position to conclusively resolve controversial factual issues between the parties, Given such limitations, in Keats & Keats,[1] the Full Court observed that:
9. …the principles that emerge from cases such as SS & AH [2010] FamCAFC 13, [are] namely, that apart from relying upon the uncontroversial or agreed facts, a judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.
[1] [2016] FamCAFC 156.
Here, the father placed emphasis on the relationship between X and the father. In Marsden & Winch (No. 3),[2] the plurality observed that the Family Law Act 1975 (Cth) (“the Act”) places focus, not on meaningful relationship as an end in itself, but rather in terms of the benefits to a particular child of meaningful relationship with a particular parent. Further, as correctly observed by the mother the consideration is not as to optimal relationship, but as to meaningful relationship and its benefits.
[2] [2007] FamCA 1364.
Adding to the emphasis the father sought to place on the relationship between X and himself, the father pointed to the Objects and Principles at s 60B of the Act, in particular s 60B(1)(a) which is in the following terms:
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.
It may be observed that while s 60B(1)(a) points to the relationship with a parent, it also points to the need to evaluate such within the broader consideration of best interests. However, as observed by Boland J in Morgan & Miles,[3] the court will:
79. …Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.
[3] [2007] FamCA 1230.
Reference was also made by the father to other aspects of the Objects and Principles of the Act, as they pertain to the parenting of a child.
The mother’s case emphasised both that the relationship between X and the father has been maintained despite the breakdown to the relationship and the limitations in face-to-face time since October 2021. The evidence of the Court Child Expert in support of such was as follows:
Somewhat surprisingly, given the limited time [X] has spent with her father since October 2021, information gathered in this assessment suggests that she has a close relationship with each of her parents. The parents’ ability to put aside their differences and focus on [X’s] needs has likely assisted her developing these positive relationships.[4]
[4] Child Impact Report dated 1 September 2022, paragraph 10.
Further, the father’s own evidence was supportive of the notion that the relationship between X and the father was demonstrated to be positive in the limited face-to-face period of time that he has spent with X since the mother moved to City F.
However, the matter most relied upon by the mother was the impact of a move away from City F pending the final resolution of the case, in particular the loss of support for both herself and X in the context of the mother’s psychological fragility. The reasonable implication is that the removal of support for the mother in such circumstances will impact her adversely with an attendant prospect of X also being impacted, both by removal from her current circumstances and by virtue of the impact on the mother.
While the case here may be considered to be, in one way or another, a relocation case, it should be observed that there is no separate category for such cases. The proposal to move carries with it legitimate expectations on the part of a party to determine where that party might live following the breakdown of a relationship. The proposal to move does not carry with it a particular onus, nor does it demand special circumstances. Rather, the preferred approach is not to deal with the relocation as a discrete issue but, where possible, “as just one of the proposals for the child’s future living arrangements” (Taylor & Barker[5]). The court is called upon to weigh the proposals of the parties, but as identified by Gaudron J (in dissent) in U & U[6]:
[37] It must be acknowledged that it is likely that, in very many relocation cases, a mother will concede that, if she has to choose between relocation and having her child live with her, she will choose to have her child live with her. That being so, she runs the risk that her interests will not be properly taken into account. To avoid that possibility, it is essential that, in relocation cases, each competing proposal be separately evaluated. That is so whether it is the mother or the father who wishes to relocate. So much was made clear in AMS v AIF.
(Citations omitted)
[5] (2007) FLC 93-345 at [53].
[6] (2002) 211 CLR 238 at [37].
Helpfully, in Morgan & Miles,[7] Boland J noted the sort of approach (within the structured scheme of Part VII) that maybe taken such that the court:
[7] [2007] FamCA 1230.
•Will carefully weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:
•that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;
•that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;
•that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;
•the non relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.
•Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.
In this case, the father is in full time employment, living in City B where the parties lived prior to the breakdown of the relationship during the mother and X’s visit to Country D. Prospects for the father moving are not immediately available.
The structured scheme set out at Part VII of the Act (and as analysed by the High Court in MRR v GR[8]) has direct application as the parties agreed that the parental responsibility for X should be equally shared. That agreement as to parental responsibility is reflective of X’s best interests given the concessions that each makes about the relationship that X has with the other, and their capacity to interact as observed by the Court Child Expert:
Prior to the observations, X was seen with both of her parents in the Court foyer. X, the mother and the father appeared relaxed in the company of one another. At the formal observations there was no obvious tension between the parents, and they communicated respectfully with each other. X was observed to be a settled child who enjoyed warm interactions and participated in reciprocal communication with each parent. X’s play and language skills appeared to be age and developmentally appropriate.[9]
[8] [2010] 240 CLR 461.
[9] Child Impact Report dated 1 September 2022, paragraph 6.
In support of the importance of a more frequent interaction than that permitted by the mother and X remaining in City F, the father pointed to the Court Child Expert’s report where it was noted:
[X] having just turned three years is at a critical stage of her development where she needs the opportunity to regularly spend time with both her mother and father, as this will assist her feeling secure in each of these relationships as she transitions from infancy into young childhood and beyond. If such time does not occur, there is a risk [X] will develop a confused sense of identity, and possibly feel abandoned by the parent with whom she does not spend regular time with.[10]
[10] Child Impact Report dated 1 September 2022, paragraph 11.
The arrangement as proposed by the Court Child Expert would necessitate a move by the mother from City F. It is the mother’s position that she should not be the subject of an arrangement that has such an effect, but also that if the orders for X to spend time with the father necessitate such a move on her part then she will do so.
It may be accepted that the mother will have less support in City B than she enjoys in City F. She will be apart from a cohort of friends who have banded together to ensure not only that she is housed and able to work, but that she is personally supported. The mother will face a degree of uncertainty in her return to City B, as to what her housing arrangements will be, and what other work she might be able to secure to supplement her remote work. These may be expected to impact upon her, although it may also be noted that she has an ongoing engagement with a psychologist based in City B. It may also be observed that a move to City B will bring change for X from where she currently lives and attends day care.
Despite the impact of a move upon the mother, and the potential impact upon X, X’s best interests point, in the interim, to X, at her particular stage of development, benefitting from time with the father at a higher frequency than can be maintained with the mother in City F, and further point to a risk of detriment to X if such does not happen. That is, X will receive added benefits of a meaningful relationship with the father by spending more time with him, and avoid the potentially harmful effects of an interruption of their relationship. It may be seen that such harmful effects are not guaranteed, particularly where the parties have managed to maintain the relationship with the father remotely. However, the benefits and uncertain risk warrant a frequency of time with the father that will require the mother to move to City B.
There was divergence between the mother and father’s positions as to the frequency if the mother should be in City B.
The mother’s proposal for continued FaceTime should be adopted, given the potential for this case to ultimately involve a relocation by the mother either to City F or to Country D, as supporting X’s familiarity with such may be of assistance to her in the future.
The Court Child Expert recommendation fell between the orders pursued by the parties. It does not meet the equal time proposed by the father, and is greater than the weekly time proposed by the mother as it provides for three occasions per fortnight as opposed to the mother’s two.
It is necessary to consider an equal time arrangement, given that there will be orders for equally shared parental responsibility. While such is reasonably practicable, it represents a further sharp change for X who has been in the mother’s sole care for much of the time since late last year. In that circumstance, the Court Child Expert’s proposal should be adopted with the addition of the FaceTime proposed by the mother as better reflecting X’s best interests
Given that such an arrangement is reliant upon representations made by the father as to practical support, leave will be given for the matter to be relisted at short notice, should the father fail to come through with what he has represented that he will do.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 19 September 2022
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