Rouanet & Mikatos (No 3) - [2023] FedCFamC1F 604

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Rouanet & Mikatos (No 3) [2023] FedCFamC1F 604

File number(s): CAC 596 of 2022

Judgment of: GILL J

Date of judgment: 21 July 2023

Catchwords: FAMILY LAW – PARENTING – Proposed international or domestic relocation – Equivalent relationships with both parents – Mental health vulnerabilities for a parent – Risk of degradation of that parent’s parental capacity – Longitudinal challenge to parenting – Effects of location on mental health and parenting capacity – Preference given to parent with better longitudinal prospects for parenting capacity

Legislation:
Family Law Act 1975 (Cth) - ss 60B, 60CA, 60CC and 65DAA

Hague Convention on the Civil Aspects of International Child Abduction 1980

Cases cited:
A & A: Relocation Approach (2000) 26 FamLR 382

Isles & Nellisen [2022] FedCFamC1A 97

Jollie & Dysart [2014] FamCAFC 149

Morgan & Miles (2007) FLC 93-343

MRR v GR [2010] HCA 4

Phillips & Hansford (No 2) (2019) 60 Fam LR 160

Taylor and Barker (2007) FLC 93-345

U v U [2002] HCA 36

Division: Division 1 First Instance

Number of paragraphs: 242

Date of hearing: 26-29 June 2023

Place: Canberra

Counsel for the Applicant: Ms Davis

Solicitor for the Applicant: Vozella Lawyers

Counsel for the Respondent: Mr Harper

Solicitor for the Respondent: Elringtons 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:

21 JULY 2023

THE COURT ORDERS THAT:
1.All previous orders are discharged.
2.The parents have equal shared parental responsibility for X, born 2019.
3.From 1 September 2023 X shall live with the father and the father is permitted to relocate the residence of X to Victoria.
4.Pending 1 September 2023 and subject to agreement otherwise by the parents in writing, X shall live with the parents on a week about basis with handover to occur at 5:00pm each Friday, with the first such handover from the mother to the father to occur on Friday 28 July 2023.
5.If, on the relevant day, X and the relevant parent are present in the same region, unless otherwise agreed between the parties in writing, X shall spend time with each parent during special occasions each year as follows:
(a)On Mother’s Day, with the mother from 5:00pm on Saturday preceding the Mother’s Day until 5:00pm on Mother’s Day;
(b)On Father’s Day, with the father from 5:00pm on Saturday preceding the Father’s Day until 5:00pm on Father’s Day;
(c)For X’s birthday, with the parent whom X is not living with at the time, from 3:00pm until 6:00pm on her birthday if her birthday falls on a school/day care day, or 1:00pm until 6:00pm if it falls on a non-school/day care day;
(d)If X is not already in that parent’s care, on the parent’s birthday from 3:00pm until 6:00pm if the birthday falls on a school/day care day, or 1:00pm until 6:00pm if it falls on a non-school/day care day;
(e)For Christmas, with the parent whom X is not otherwise spending time with, from 9:00am on Christmas Eve until 12:00pm on Christmas Day;
(f)During the Easter period:
(i)If it does not coincide with Orthodox Easter, X shall spend time with the mother from 3:00pm on Good Friday to 3:00pm on Easter Monday; and
(ii)if it does coincide with Orthodox Easter:
A.In odd-numbered years, the father spend time with X from 3:00pm on Good Friday to 12:00pm on Sunday and the mother spend time with her from 12:00pm on Sunday to 3:00pm on Monday; and
B.In even-numbered years, the mother spend time with X from 3:00pm Good Friday to 12:00pm on Sunday and the father spend time with her from 12:00pm on Sunday to 3:00pm on Monday.

6.Unless otherwise in his care, and subject to Order 5(f), X shall spend time with the father during Orthodox Easter, from 3:00pm on Good Friday to the commencement of day care or school on Monday (or 3:00pm if it is not a day care or school day).

If the mother relocates to Victoria
7.In the event that the mother relocates to Victoria, subject to written agreement otherwise, X shall live with each of her parents in an equally shared care arrangement as follows:
(a)On a week about basis during school terms and end of term 1, 2 and 3 school holidays with handover to occur each Friday after school (or 5:00pm on a non-school day);
(b)During the summer long holidays, with the mother for the first half and the father the second half in odd numbered years and with the mother for the second half and the father the first half in even numbered years.
(c)Such further or other times as agreed in writing between the mother and the father.

If the mother relocates to Country D
8.Unless otherwise agreed in writing, if the mother relocates to Country D X shall spend time with the mother as follows:
(a)By Facetime or similar form of electronic communication as agreed but in the absence of agreement, at least twice a week;
(b)Prior to X commencing primary school:
(i)in Australia, on two occasions per year, for up to 14 consecutive days per occasion, with such times and dates to be agreed between the parties in writing; and
(ii)in the location at which the mother is residing, on one occasion per year, for up to 30 consecutive days, with such times and dates to be agreed between the parties in writing.

(c)Upon X commencing primary school:
(i)in Australia, for up to 10 consecutive days during each end of school terms 1, 2 and 3 holiday period, with such times and dates to be agreed between the parties in writing, with the mother’s time to conclude no later than the day before the commencement of the new school term; and
(ii)in the location at which the mother is residing, for up to 30 consecutive days during the long summer holiday period, with such times and dates to be agreed between the parties in writing, with the mother’s time to conclude no later than one day before the commencement of the new school year.

(d)Such further or other times as agreed between the parties in writing.
(e)In relation to X’s travel to Country D, unless otherwise agreed in writing the parties shall share equally the cost of X’s travel.
(f)Until X is able to travel on an unaccompanied basis the father shall bear the costs of an accompanying adult.

If the mother relocates to City F
9.Unless otherwise agreed in writing, if the mother relocates to City F X shall spend time with the mother as follows:
(a)By Facetime or similar form of electronic communication as agreed but in the absence of agreement, at least twice a week;
(b)Prior to X commencing primary school:
(i)For two weekends per month to be on days and times as agreed, but in default of agreement, the first Friday of the month from 9:00am until 6:00pm the following Monday, and the third Friday of the month at 9:00am until 6:00pm the following Monday, with such time, at the nomination of the mother to be in Victoria or City F;
(ii)During the period from 8 January to 23 January 2024 at the nomination of the mother to be in Victoria or City F.

(c)Upon X commencing primary school:
(i)For one weekend per month to be on days and times as agreed, but in default of agreement, the third Friday of the month from after school until 4:00pm the following Sunday, with such time at the nomination of the mother to be in Victoria or City F;
(ii)For half the end of Term 3 and 4 school holiday periods applicable to the school in which X is enrolled, being the first half in even years and the second half in odd years, with such time to be spent in Victoria or City F at the nomination of the mother;
(iii)For half the Term 1 and 2 school holiday periods applicable to the school in which X is enrolled, first half in odd years and second half in even years, with such time to be spent in Victoria or City F at the nomination of the mother;
(iv)For the purposes of reckoning the first and second half of the holiday periods, the first half shall be deemed to commence on the first non-school day and, for a holiday approximately an even number of weeks end on the Saturday/for a holiday approximating an odd number of weeks end on the Wednesday – that is the closest to the mid-point of the holiday period, and the second half shall commence on, for a holiday approximately an even number of weeks the Saturday/for a holiday approximately an odd number of weeks end on the Wednesday – that is the closest to the mid-point of the holiday period and end on the last day prior to school recommencing;
(v)The mother’s nomination shall be given in writing no later than fourteen days in advance of the relevant period and, if not so given shall be taken to be a nomination that the time take place in Victoria.

(d)In relation to X’s travel to City F:
(i)unless otherwise agreed in writing the parties shall share equally the cost of X’s travel.

(e)Until X is able to travel on an unaccompanied basis:
(i)The father shall accompany X for trips during the school term and bear his costs of doing so;
(ii)The mother shall accompany X for school holiday trips and bear her costs of doing so.

Communication
10.At times when X is not in the care of a party, that party is at liberty to audio call and/or video call X as agreed, and if not agreed, no less than twice per week.

Overseas travel
11.Each party shall do all acts and things and sign all documents necessary and to enable the X's Australian passport to maintained from time to time, with the costs to be shared equally.
12.X's Australian passport be held by the father and, in the event that the mother is travelling overseas with X, the father shall, if requested to do so, deliver the passport to the mother fourteen days prior to the date of X’s departure from Australia with the mother and the mother shall return the passports to the father within fourteen days of X’s return to Australia.
13.In the event that the father delivers X to the mother overseas then the father shall deliver X’s passport to the mother at the same time, and on returning X to the father the mother shall return X’s passport with X.
14.The father shall sign any required documentation for X to obtain a Country D passport and return the same to the mother within 14 days of a request being made by the mother.
15.Each party shall do all acts and things and sign all documents necessary and to enable the X's Country D passport to maintained from time to time, with the costs to be shared equally.
16.X's Country D passport be held by the mother and, in the event that the father is travelling overseas with X, the mother shall, if requested to do so, deliver the passport to the father fourteen days prior to the date of X’s departure and the father shall return the passports to the mother within fourteen days of X’s return to Australia.
17.Pursuant to section 65Y of the Family Law Act 1975 (Cth) the mother and father each be at liberty to travel overseas with X during their time with X as provided for in these Orders and/or at times as agreed in writing, but shall not take X to a destination described as “do not travel” or “reconsider your need to travel” by unless otherwise agreed between the parties in writing.
18.For the purposes of overseas travel the party proposing to take X overseas (the travelling party) shall give the other party at least 28 days prior written notice of the proposed trip overseas including:
(a)The proposed departure and return dates;
(b)Full details of who is travelling with X including the full names and relationship to the X/and or parent;
(c)Flight details (including names of airlines and flight numbers) and, if applicable cruise details (including full details of the cruise liner);
(d)Full details of the means of contacting X and parent while travelling overseas including mobile phone numbers.

19.The travelling party provide to the other party with a copy of the airline return tickets (or cruise ticket if applicable) no less than 14 days before the proposed departure date;
20.For the purposes of overseas travel other than as referred to in order 8 the travelling party shall give the other party at least 28 days prior to the travel a full travel itinerary of all locations where X is visiting, including arrival and departure dates for each city visited and all details of where X will be staying overnight (including full addresses).

Medical and education
21.Each parent shall as soon as practicable notify the other in the event that X suffers any serious illness or injury requiring urgent or emergency treatment whilst in their care and provide to the other parent the particulars of such illness, injury and any treatment being received and the name and address and contact details of the treatment provider or location at which X is a patient.
22.Each parent authorise and direct current and future medical and health practitioners treating X to provide both parents with all information as to her attendance and/or treatment, at their own request and cost, and each parent will keep the other updated as to all medical appointments attended by X.
23.Each parent authorise and direct X’s day care/school and extra-curricular providers to provide both parents with all information usually provided to parents regarding her attendance, including but not limited to notices, information, newsletters and all reports, such information to be provided at the expense of the requesting parent.
24.Each parent be permitted to attend all of X’s school activities including extra-curricular activities, routinely attended by parents, included but not limited to parent-teacher interviews, school concerts, sporting events and school functions and presentation nights.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J
INTRODUCTION

These proceedings concern the parenting arrangements for X, born 2019, who is the only child of the parties. The parties were in a relationship from about mid-2014 until November 2021. While the relationship was intact, X was primarily cared for by the mother, including for a period without the father being present while he was posted, as a member of the Defence Forces, overseas.
Shortly prior to the end of the relationship the mother travelled with X to Country D, her home country, for an extended visit. During that time the relationship between the parties ended, and the mother declined to return with X to Australia at the time previously agreed. Court proceedings then ensued, along with preliminary steps to compel X’s return pursuant to the Hague Convention on the Civil Aspects of International Child Abduction 1980.
After initiating proceedings in Australia the mother returned to Australia and located herself and X in City F, far from City B where the parties had lived prior to separation. Following further court proceedings the mother and X relocated to City B pending this trial, with the father then spending substantial and significant time with X.
The parties are in contest as to who X will live with, and whether that will be primarily with the mother in Country D, or if not Country D, City F, or primarily with the father, in Victoria. Each has conceded some possibility in respect of continuing to live in City B.
ORDERS SOUGHT
The specific orders sought by each of the parents are annexed to this judgment.
In general terms the mother asks for orders for equal shared parental responsibility for X, for X to live with the mother, and for the mother to be at liberty to relocate with X to Country D. Should the father move to Country D the mother seeks orders that he spend substantial and significant time with X and, from X turning five years old, that X’s time with each parent be equal. Should the father not move to Country D, the mother seeks, in addition to electronic time, that the father spend time with X in Country D twice per year, and once per year in Australia.
In the alternative, should relocation to Country D not be permitted, the mother asks to be permitted to live with X in City F, Australia. Should the father move to City F, again the mother seeks that X spend substantial and significant time with him until she turns five, then equal time between the parents.
If the father does not move to City F, the mother asks that in addition to electronic time, that the father and X spend two weekends per month together and half of the Christmas school holidays together until X turns five, from which time for one weekend per month and half of the school holidays.
The mother also seeks orders about special days for X.
The father ultimately sought an order for the equal sharing of parental responsibility.
The father asks that X live with him, and that he be permitted to relocate with her to Victoria. If unable to move to Victoria he seeks to remain in City B with X (if the mother was also to be resident in City B).
Should the mother live in the same state as X the father asks for orders that provide for X to spend, initially, substantial and significant time with the mother, transitioning to an equal sharing of time.
He too seeks orders for special days.
In the event that the mother moves without X to Country D, the father seeks orders that until X commences primary school she spend time with the mother on two occasions each year in Australia and one in Country D. Once X commences primary school the father seeks that the mother spend time with X each school term holiday in Victoria, and for a period of time during the long holiday period in Country D.
In the event that the mother moves to City F without X, the father asks that until X commences primary school that she spend one weekend per month with the mother and, after starting primary school for one weekend per month, for a period each school term holiday and during the Christmas holiday for a period in City F.
ISSUES
In order to determine the contest as to parenting arrangements for X the parties identified a number of underlying issues.
The issue that looms largest is that of parenting capacity, being the capacity of each of the parents to provide for X’s needs, in particular in relation to her emotional needs, development and practical care. On either parties’ case what is being assessed in terms of capacity is not an abject lack of capacity, but a relative assessment of each parties’ capacity within a holistic assessment of the various considerations that go the X’s best interests. This is consistent with the position that each party takes that X spend equal time with each of the parents if practically available.

Of particular importance in consideration of parental capacity is the mother’s mental health.
The parties each accept that the mother has mental health issues. The extent and nature of such, the parenting capacity of the mother in the context of such, the impact upon the mother’s relationship with X, and the degree to which the mother may have support available to her in either Country D or City F that may ameliorate those mental health issues are in contest. An aspect of the assessment of the mother’s parenting capacity is the extent to which the mother’s use of prescribed and other drugs, including illicit drugs and alcohol, impact her capacity.
Entwined with this assessment is the consideration of the extent to which the father’s manner of interaction and communication with the mother adversely impacts the mother and her capacity to care for X.
Similarly, although without the mental health issues, the father’s parenting capacity and his capacity to foster X’s development and emotional wellbeing also require assessment.
A particular aspect of parenting capacity that requires examination is the capacity of each of the parents to foster an at distance relationship between X and the other parent. This also requires examination of the extent to which the mother places importance upon X’s relationship with the father.
Each of these aspects of the case require consideration within the context of the competing positions of the parties as to, geographically, where X should live. The primary cases pursued by each, and the secondary case pursued by the mother, sees no option for X to live proximate to both parents. Each of the options advanced by the parties calls for consideration of the support for the parties available to them in each place, the direct benefits to X, and the possibilities for X to enjoy a relationship with the other parent despite the practical difficulties that will confront such.
The father’s secondary position, of living in City B, is reliant upon the mother also choosing to live in City B, an outcome that is not reflected in the mother’s application, but entertained by her as a possible response should X be caused to live in City B.
Each of these issues requires an assessment of what may occur in the future for X and the parties in a manner akin to the assessment of risk for X, although in this case the assessment of risk is centred on parental capacity and potential compromises of that parental capacity and the impact on X of such compromise.
MATERIAL RELIED UPON
The mother relied upon the following:
(1)Amended initiating application filed 14 December 2022
(2)Affidavit of the mother filed 6 April 2023
(3)Affidavit of the mother filed 17 May 2023
(4)Affidavit of Mr G filed 6 April 2023
(5)Family report dated 30 May 2023.
The father relied upon the following:
(1)Affidavit of Mr Mikatos filed 1 May 2023
(2)Affidavit of Mr O filed 1 May 2023
(3)Further further amended response to initiating application filed 2 May 2023
(4)Affidavit of the father filed 2 May 2023
(5)Financial statement of the father filed 23 May 2023
(6)Affidavit of Dr M filed 14 June 2023
(7)Affidavit of Dr M filed 22 June 2023
(8)Family Report dated 30 May 2023
(9)Child impact report dated 1 September 2022.
A family report and child impact report were prepared by a court child expert. A single expert report was prepared by a psychiatrist, Dr M, in relation to each of the parents. The parties only relied upon the single expert report in respect of the mother, the father’s mental health not being, ultimately, placed into issue by either of them.
HISTORY OF THE RELATIONSHIP
The history of the relationship of the parties provides a useful context to understand the current dispute and, in particular the geographical aspects of the dispute as to X’s living arrangements. It is a history that can be described in a general manner at first instance, before descending into further detail as particular issues are explored.
The mother was born in Country D in 1987. She is a Country D citizen but became a Permanent Resident of Australia in 2019.
The father was born in 1989 in Australia.
The parties’ relationship commenced in mid-2014 after meeting in City E earlier that year.
The parties travelled to Country D in 2015 and lived there together during this time.
The mother immigrated to Australia in early 2016 at which point the parties commenced living together in City F.
X was born in 2019 and is the only child of the relationship.
The parties were engaged to be married in late 2019.
In about late 2021 the mother proposed to take X to Country D for a holiday to meet the mother’s family. The father agreed for the mother to take X to Country D from late 2021 to early 2022.
The mother ended the relationship in late 2021 while she was in Country D. She did not return with X as earlier agreed in early 2022. The parties each gave serious consideration to the father travelling to Country D for an extended visit. However, this did not occur, and the father insisted that X be returned to Australia.
During this period the parties facilitated X and the father having frequent electronic contact, on an at least daily basis.
The father lodged an application in accordance with the Hague Convention on the Civil Aspects of International Child Abduction 1980 in early 2022. Once the application was processed and approved, the City DD Central Authority sent a letter to the mother inviting her to voluntarily return the child in early 2022. The father also wrote to the mother requesting her to voluntarily return the child after preparing an application for filing in the City DD Court.
The mother commenced proceedings in the Federal Circuit Court on 1 April 2022, seeking permission to remain in Country D.
However, in mid-2022, the mother and the child returned to Australia. As foreshadowed in court documents the mother did not return to City B, but rather to City F.
The father flew to City F in June 2022 to see the child for the first time since she departed for Country D with the mother.
Following an interim hearing the mother and the child returned to City B on or about October 2022. Since that time X has lived primarily with the mother, and spent substantial and significant time with the father, including time over and above what was provided for in the orders with the cooperation of the mother. This has facilitated the father being able to travel with X on a number of occasions to spend time with his family in Victoria.
The return to City B
The return to City B with X was resisted by the mother. A large part of that resistance was the mother’s expressed need for personal support, available to her in City F, but less so in City B. The parties were in disagreement about the mother’s return, with the mother seeking, and the father declining an extension in the date for her move to City B. Whilst the father agreed to assist in the financial support for the return of X, he did not agree to pay for the mother’s flight.
In support of his application that caused the mother and X to return to City B, the father offered practical support, including that the mother would be able to occupy his home without him being present when she initially came to City B. However, the father had a number of cameras installed in the home and when the mother switched them off he contacted her asking for them to be switched back on.
This occurred in a further context of the father accessing and using, both at the interim hearing and at the final hearing, a number of private messages between the mother and her friends and family. These were obtained from an iPad used by the parties during the relationship. His obtaining and selection of the messages involved him examining the mother’s private correspondence and, although he had legitimate access to the iPad, the father’s interrogation and use of the mother’s private communications seriously invaded the mother’s privacy in a manner likely to adversely impact upon her.
The father also offered the payment of a sum of money each week in support of the mother. The father offered $600 per week for the mother and a further $100 per week for X. The father paid the promised amount (which was not supported by a court order) whilst the mother pursued employment. The father, through his lawyers, vigorously pursued the mother for details of her pursuit of work. Although this placed pressure upon the mother, it was understandable in a situation where the father was supporting the mother pending her finding work. It however contrasted with his own approach to his work arrangements, as he followed a process to quit the Defence Forces over a number of months without letting the mother know that he was doing so.
The mother sought the father’s support in the provision of a reference to assist in the obtaining of a rental property. The mother describes that despite a number of assurances by the father that he would provide the reference promptly, he did not do so.
It may be seen that the father’s conduct following the mother’s return to City B placed some additional pressure upon her, and did not reflect either an understanding of, or commitment to supporting the mother in a manner likely to benefit her mental health.
Despite their difficulties, the parties organised between themselves further ad hoc time between the father and X. The mother, in particular, has exhibited flexibility in relation to X’s time with the father, agreeing to a number of proposals by the father for further time, although the mother did not agree to all proposals. She explains that she did not do so as she was concerned to ensure a more consistent routine for X. The father accepted at trial that his ongoing requests to permit X to travel to Victoria with him may have been disruptive to X.
GEOGRAPHICAL CONSIDERATIONS
The parties led evidence about the characteristics of each of the places that they might live in, or in each of the places that it is suggested that they might live in, and what their attitude is to living in each of the places.
City B
Both of the parties and X currently live in City B. They lived in City B prior to their separation, and prior to the mother’s trip to Country D with X. They initially moved to City B as a consequence of a posting of the father to City B in 2021. Hence the period they lived in City B prior to the breakdown of the relationship was short.
Although each contemplated the possibility of continuing to live in City B following these proceedings, neither wishes to live in City B. The father’s fall back position that provided for living in City B was reliant on the mother living in City B. The mother conceded that she would live in City B if that was where X was to live.
Although each of the parents have lived in City B, the mother has work in City B, and the father has both social and work connections in City B, neither regards City B as a place of support. At its height the father says that he could rebuild to remain in City B. Neither parent regards City B as being a place where they could be supported in a manner that allows them to best parent X.
The evidence supported the notion that the mother, absent adequate support in City B, would face a potential decline in her mental health should she continue to live in City B.
The father conceded that despite City B being his fall back position, it could not be regarded as a reasonably practicable option for the parties. Given the impact on each of the parties it may be considered to fall short of reasonable practicability. Each would lack the support that they crave and face the difficulty of living in a place that they do not wish to be. While the father does not face the mental health decline faced by the mother, it may be anticipated that the lack of support would still constitute a significant personal burden upon him.
Given its lack of reasonable practicability, City B may be excluded from consideration as a potential outcome. Further, the matters that point to a lack of reasonable practicability also point to City B as being adverse to X’s best interests due to the impacts that would be suffered by each of her parents should they be compelled to live in City B.
Country D
The mother’s primary application is to live with X in Country D, the mother having grown up there.
The mother describes strong support as being available to her in Country D. When the mother and X were in Country D, her uncle Mr P and his partner Ms Q provided their living expenses, including rent and food, and provided a vehicle, as well as more personal support and babysitting and caring for X.
The mother found personal support including emotional, financial and assistance to obtain employment from her aunt Ms R. She further described connection and support from a wide range of relatives and friends.
The mother asserts that she has strong prospects of employment in Country D with a business that she previously worked with in Country D.
Although the father accepts that he has previously stayed for an extended period of months in Country D with the mother, and while the parties contemplated an even longer stay in Country D, and although previously he obtained a visa that allowed him to work there, Country D has never been the father’s home and he does not countenance living there.
While the father’s relationship with the mother’s uncle Mr P has been a positive one, it cannot be anticipated that the father would be other than isolated if he moved to Country D.
The father’s evidence that he would not move to Country D should be accepted.
City F
The parties previously lived in City F while the relationship was intact.
The mother describes that she has strong support from friends in City F, including support in the mother’s pursuit of a rental property from friends who have agreed to co-sign a rental property, from friends who have agreed to contribute to a rental bond, and access to friend’s motor vehicles.
Part of this support comes from Mr G and Ms S. The mother describes that Mr G has offered the mother employment should she move to City F.
Mr G gave evidence in support of the mother and was previously a good friend of both parties. Following his provision of an affidavit in support of the mother the relationship between Mr G and the father broke down. Prior to that the parties had agreed that Mr G would be X’s godfather.
The father accepted that at various times during the relationship City F was the place that the mother went to in order to find support. This was the case during the mother’s pregnancy with X, where the mother remained in City F for a number of months during the pregnancy, after the father moved to City EE on posting. Shortly prior to giving birth the mother moved to to be with the father.
When the father was deployed to City L for a few months in 2020 the mother and X returned to City F. The mother describes an improvement in her mental health during this time, describing the positive personal and social supports available to her.
The father accepted that during this time the mother expressed to him the benefits of her support in City F, particularly in relation to the importance of such a “village” being available to raise X. In this conversation the mother expressed the importance of support, whether in Country D, City F, or potentially in Victoria.
The father further accepted that there were other occasions during and after the relationship when the mother travelled to City F for the support that was there, including an occasion when X remained in the father’s care for an extended period in February 2023. The mother, expressing that she was struggling, travelled to City F, and asked the father to look after X for a more extended period than originally planned. The father did so.
Although the father expressed some reservations about the ongoing prospects for the mother’s support in City F, not only has the mother drawn such support over a period extending from during until after the relationship, the evidence of Mr G demonstrated the availability of deep support for the mother in City F, both practical and personal, including support for accommodation and employment. It should be accepted that if the mother was to live in City F she would receive strong social, practical and emotional support.
Whilst Mr G expressed a willingness to provide practical support for the father, and the father acknowledged that they had once been close friends, it cannot be expected, at least in the near future, that the father can be expected to take such support from the close ally of the mother.
Whilst there are offers of support, and a reasonable expectation that the father could obtain employment in City F, and whilst a shared care arrangement could take place in City F, the father asserts that he will not move to City F even if X was to live there.
Although I was urged to conclude that the father will move to City F if X is to live there, I am unable to do so. Despite the father having expressed a willingness to live in City B if X is to live there, I accept his evidence that he would not be prepared to do the same with City F, observing the emphasis placed by the father on having support from his family. Whilst City B is not proximate to the father’s family in Victoria, if the father were to be in City F he would face a much larger practical obstacle of distance and practicability to being with his parents and siblings.
Victoria
The father was raised in Victoria. His family, including some extended family, live at Town T, where they operate a farm. Both of the father’s siblings live at the farm, as do his parents.
The father enjoys strong support, practically, financially and personally from his family in Victoria. His family has helped finance the proceedings. Finances are also available to ease the way for the mother in living proximately to the paternal family, including offers of support for accommodation, for schooling and for travel. The family have made arrangements for the father to participate in the family business at Town T.
There remains uncertainty as to the work circumstances for the father at the Town T farm. Whilst there may be confidence that the father will be able to work in the farm, his level of remuneration is unclear, in circumstances where he will have significant debt from these proceedings to repay. The hours of work for the father were also unclear, despite his assertions as to flexibility in his arrangements to permit him to be available for X.
The father’s parents demonstrated deep care, not only for the father and X, but also for the mother.
Whilst it may be accepted that the paternal family are genuine in their offer of support for the mother, it cannot at this stage be anticipated that the mother, in the context of the end of the relationship with the father, would be able to avail herself of that support. Where the mother struggles with her mental health, she cannot be expected to take her support to ameliorate her mental health issues from the family of the father.
Despite the offers from the paternal family it cannot be concluded that the mother will have the personal support available to her in Victoria that will ameliorate her mental health issues. It may be anticipated that despite the good will of the paternal family the mother would experience isolation if living in Victoria, being far from her family in Country D and her friendship group in City F.
Although a shared care arrangement would be possible should the mother live in Victoria, the mother’s position is that she will not live there even if X is to live there. It may be accepted that this is the case.
THE MOTHER’S MENTAL HEALTH HISTORY
As identified above, a key aspect of assessing the parenting capacity of the mother, and of assessing the significance to that of the various available geographical outcomes, is the mental health of the mother. The manner in which the mother’s mental health impacts her capacity, and the impact on her mental health of living in Country D, or City F, or elsewhere, and of living close to or far from X, are important considerations in determining X’s best interests.

A recent chronology in relation to the mother’s mental health is set out below, noting that the assessment of the single expert sets out further background.
Following the birth of X the mother was diagnosed as having postpartum depression, obtained a mental health plan and was prescribed medication. During 2019 the mother attended Ms U, psychologist.
When X was about one year old the father was posted to City L. The parties agreed that during the posting the mother and X should move from Brisbane to City F for better support. The mother described that with the support that she experienced in City F her mental health improved.
In early 2021, shortly after the City L posting ended, the father was posted to City B. The mother followed with X a short time later. The mother described that she was diagnosed with stress related condition.
The mother describes that since the breakdown of the relationship she has experienced strong feelings of “sadness, hopelessness, fear and panic”[1] in a manner similar to what she experienced after X was born.
[1] Affidavit of the mother filed 6 April 2023, paragraph 106.
Whilst still in City V, in early 2022, the mother sought the services of a psychologist. The mother was not successful due to a lack of availability and so a short time later turned her enquiries to Australia, securing a first virtual attendance on a psychologist, Ms J in early 2022. The mother had ten sessions with Ms J, but is no longer a patient of hers due to a lack of finances to support an ongoing engagement. The mother describes that Ms J diagnosed the mother with a mental health condition and anxious distress.
The mother describes that she has been prescribed medication along with, for occasional use in response to severe panic attacks, another medication.
The mother further describes that since her return to City B in late 2022 she has experienced “insomnia, night sweats, increased panic, increased tightening in my chest... cry everyday and could not attend to my basic self care needs (showering, getting dressed, leaving the house for food, etc).” [2]
[2] Affidavit of the mother filed 6 April 2023, paragraph 111.
The mother has consulted with a number of mental health professionals, and is currently engaged with a psychiatrist, Dr W, a psychologist, Ms Y, and a general practitioner, Dr Z. She is, at present, using a number of medications and beyond formal medications is also consuming a non-prescription drug.
In pursuit of appropriate support the mother attended an intake assessment in late 2022 in order to more quickly access a general practitioner. Following this, two days later, the mother attended on her current general practitioner, Dr Z, and was prescribed medication for anxiety attacks, and increased dosage of another medication.
Shortly after this X was in Melbourne with the father. The mother describes that during this time she experienced thoughts of self-harm and self-sabotage, but explains that she did not act upon them. In response to this the mother contacted her GP for support.
In late 2022 the mother again consulted on her GP to obtain referrals for a health condition, chronic pain and psychiatric support. The mother received a number of referrals, and continued regular consultations with her GP.
The mother also completed an intake process with an agency called BB Counselling Service to access a clinical psychologist.
In early 2023 the mother told her GP that she felt that her mental state was regressing. The GP recommended that the mother wean off the medication in order to change medications. The mother found that X’s absence with the father, her isolation and the change in medication to be a combination that she was unable to cope with and, on advice from her GP, travelled to City F for support. She asked the father to extend his time with X to facilitate the mother being in City F, which the father agreed to.
The mother found strong support from her friends in City F.
In early 2023 the mother had her first consultation with her current psychologist, Ms Y, and has had fortnightly appointments with her since. The mother described that she still continued to experience difficult symptoms:[3]
increased heartrate, excessive shaking, restlessness, sweating, nausea and vomiting, decrease in sleep, complete loss of appetite, sedated, increase amnesia...extreme depression...the loss of emotion entirely.
[3] Affidavit of the mother filed 6 April 2023, paragraph 127.
The mother has, from early 2023, also obtained counselling support through Ms CC.
Further, in early 2023 the mother had her first telehealth consultation with her psychiatrist, Dr W, who suggested in a report dated April 2023 an increase to the mother’s medication, and the addition of a mood stabilizer.
In early 2023 the GP increased both medications.
When seeing Dr W the mother reported having recently switched medication. She was considering admitting herself to hospital, and described finding it very difficult to cope whilst living in City B. She described alcohol abuse as having commenced on her move to City B, although for the previous month described two standard drinks per day, and the use of a prescribed drug. The mother reported diagnosis and symptoms of a health condition.
Dr W’s risk assessment at that stage was of the mother as a chronic moderate risk of self-harm and suicide, but low risk of aggression and harm toward others. The issue of the mother potentially engaging in self harm was not pursued at trial.
Dr W assessed the mother as suffering a moderate depressive episode, with a differential diagnosis of Personality Disorder, and advised an increase in medication, along with a further medication, and referral to a clinical psychologist for therapy.
The mother however described that she continued to:[4]
have difficulties sleeping, I frequently can’t stop myself from crying, suffer from a shortness of breath, experience a tightness in my chest, shaking, chronic pain, night terrors, insomnia and sometimes stress induced vomiting.
[4] Affidavit of the mother filed 6 April 2023, paragraph 134.
The mother also described suffering from symptoms of the health condition, including a “foggy brain” but has avoided taking medication for it out of concern for the other impacts that may result.
The mother derives strong support from her friends and family members, located in City F and Country D, although she describes that at times she feels unable to access that support as the interactions with people that she misses can trigger her symptoms.
What is the mother’s alcohol and drug use?
The mother has been a user of both prescribed and non-prescribed drugs.
There was some uncertainty as to the levels of the mother’s use of an illicit drug. While the mother accepted that she may have used an illicit drug as long as fifteen years ago, she denied that there has been ongoing use since then.
The mother accepted that in the recent past she has used both prescribed products and drugs that she has procured herself.
The mother has sought medical support in relation to her use of alcohol following her return to City B.
While these matters were explored at some length, a particular impact upon X of the mother’s use of either alcohol or an illicit drug was not suggested or established, although an issue emerged as to the potentially insecure nature of the mother’s storage of the drug and as to whether such posed a risk to X.
The use of each may be seen, at least in part, to be ways in which the mother deals with being under pressure.
In addition to the use of the specific illicit drug, the mother accepted that she has on occasion used other illicit drugs. The occasions of such did not indicate any impact upon X or on the mother’s capacity to parent X. Similarly, the father’s admitted use of alcohol and illicit drugs had no described adverse impact upon X.
PSYCHIATRIC AND PSYCHOLOGICAL EVIDENCE
The single expert
Shortly prior to the trial of the matter the parties identified the need for psychiatric assessment of each of them and for evidence of such to be available at the trial.
Dr M, a forensic psychiatrist, was appointed as the single expert in these proceedings, and was tasked with assessing the mental health of each of the parties. By the time of the trial the mental health of the father was no longer in issue between the parties, and it was his evidence regarding the mother, her mental health and her parenting capacity that was in contention.
In his report the single expert expressed that the mother’s mental health difficulties, combined with her limited insight and problems with empathy represented a serious limitation on her capacity to parent. This led him to recommend that the mother should not be the primary parent.
He considered that particular impacts upon parenting capacity flow from potential exposure of X to the mother’s distress, exposure to substance abuse and exposure to a lack of insight or inattentiveness on the part of the mother.
Dr M considered that the mother has a personality disorder. He described such a disorder as “a long term, ingrained, maladaptive way of coping with thinking, feeling and behaving.” He observed that even if the constellation of factors that he relied upon to reach such a diagnosis was insufficient to meet the diagnostic threshold, it should still be considered that the mother suffers from similar sorts of vulnerabilities as accompany the diagnosis.
In reaching the diagnosis Dr M relied principally upon the mother’s early disrupted life, her difficulties with empathy and instability inferred in part from inconsistency in her accounts to various professionals, along with long term instability of affect reflected in long term substance abuse. He relied heavily upon his clinical impression of the mother, and in what he described as a cross sectional interview with the mother.
The disrupted life, described further as interpersonal difficulty was taken from relationship difficulties with the mother’s mother and father and with the father. No other hard indicators of relationship difficulty were identified.
Dr M derived the conclusion of long term instability of affect from the mother’s narrative, the father’s narrative, the mother’s medical records and from the mother’s long term use of substances. He considered that, despite stability seen in the mother’s employment, she has also exhibited impulsivity. In particular the single expert identified that the manner of ending of the relationship by the mother was consistent with personality disorder, being impulsive and reflecting a difficulty on the part of the mother in regulating her affect and acting in a destructive manner in response to that difficulty in regulating her affect.
He further identified what he described as emotional shallowness, seen in an incapacity to empathise about the impact of her actions on X and the father in retaining X in Country D, and then in relocating to City F. He also described a shallow display of emotion by the mother at interview. Although challenged in relation to this assessment as to the potential impact of the medication that the mother was taking in blunting her emotions, he did not accept that this may also blunt her presentation. It was unclear why this was so.
Although Dr M accepted that the mother had at interview described both what she had seen in terms of impact of her mental health on X, and that she had also sought feedback from X’s daycare, he remained doubtful about the mother’s degree of insight given the potential effects of her substance use.
Similarly, whilst seeing as positive the father’s assessment of the mother’s mental illness not having impacted negatively on X, he was doubtful as to the father’s capacity to assess such given his substance use.
However, Dr M considered that the nature of the support that the mother gave to X’s relationship with the father whilst in Country D, being daily electronic communication, such as to mean that on return to City B’s relationship with the father appeared full and warm, pointed to the mother having insight into X’s needs in respect of the father.
Consideration of concrete examples of the mother’s insight into X’s needs, including her generosity in relation to X’s time with the father, caused Dr M to soften his view as to lack of insight on the part of the mother.
The inconsistency in reports given by the mother was taken as significant by the single expert as he considered that it is common for persons with a personality dysfunction “to be unstable and have an unstable recollection of memory and sense of self which could have manifested as the different historical accounts in the records.” He accepted that this was not the only explanation for inconsistency in reporting by the mother.
In terms of what may provide assistance to the mother to improve her functioning Dr M commended as appropriate the mother’s engagement with therapy, with her psychologist, with a counsellor, with a treating psychiatrist, and with social worker support. He also indicated as important the mother having provided the father with more time with X when the mother’s mental health is suffering, and with the mother shielding X from the impacts of her mental health issues. The only two issues identified by Dr M as unsupportive of the mother’s mental health related to the mother’s substance use, and the lack of social supports. He considered that, while a personality disorder is difficult to treat, each of the steps taken by the mother are appropriate and positive.
In relation to social supports, while the single expert did not accept that such provided a guarantee of improvement, he accepted that the presence of and access to social supports is a factor that has the potential to cause improvement.
Dr M further considered that the mother has a substance abuse disorder, flowing from the mother’s use of alcohol, illicit drugs and prescription medications. In this context the mother’s evidence of procuring and using drugs led to a question as to whether the mother was correctly estimating her consumption of the drugs.
In assessing this issue the single expert relied in part upon prescriptions allocated to the mother, observing them to be excessive, in particular in the prescription of two specific medications. Given that the mother’s account of what she was taking did not match what was prescribed the single expert thought the mother to be failing to disclose accurately her drug use. It may be observed that it remained unclear whether the mother’s evidence as to consumption was inaccurate. The mere mismatch between her description of consumption and the level of the prescription was not probative of the mother understating her use, as opposed to merely not using the full prescription amount. He did not accept that the prescription of a drug to the mother was appropriate.
Even if not misstated by the mother the single expert retained his view as to the use being problematic.
Similar concerns were expressed in respect of alcohol consumption, noting that the mother has given different descriptions of use at different times. It may, however, be observed that this is also consistent with the mother using different amounts at different times.
The single expert accepted that there is uncertainty in relation to whether there is misuse of substances by the mother. He further accepted that occasions where the mother has indicated that she is drinking excessively to her doctor and sought assistance in respect of such constitutes a positive aspect for the mother, but that such was also consistent with a pattern of relapsing and remitting.
A particular issue identified by the single expert in relation to substance use is that the substances are used by the mother to regulate her affect. He considered that the mother’s use represented a maladaptive coping mechanism. A particular example identified of such maladaptive use was the mother’s report that she had, in early 2023 at the time of commencing a new job, consumed a half tablet of a specific medication. The single expert considered that this was fairly typical of a personality disorder.
However, he also accepted that the mother’s drinking did not appear to have caused her issues in her employment, social life, or her relationship with the father. Against this, the mother’s report at early 2023 to her treating psychologist that she was consuming five to six standard units of alcohol after X had gone to bed, and that she did not consider that it was either excessive or that it affected her mental health, was considered by the single expert to indicate limited insight into her drinking and that it was at a level likely to affect the mother’s mood and cognitive functioning, not only whilst drinking but also the following day.
The third aspect of diagnosis was as to the mother suffering from a psychological disorder, her experiencing of a health condition being an aspect of her other mental health difficulties. He however conceded that he was cautious in relation to this aspect of the diagnosis.
Returning to the issue of the mother’s parenting capacity, the single expert expressed that the mother’s distress, substance use and lack of insight may mean that she is not attentive to X’s developmental needs and emotional wellbeing, such a concern being as to impact upon X’s longitudinal development. By the end of his oral evidence the single expert considered as positive the various matters raised in relation to the mother as dealt with above. He remained concerned as to the potential fluctuation on the mother’s mental health and substance use. He indicated that a period of stability would give more comfort in relation to that issue.
Although the single expert had referred in his written report to supervision for the mother in her parenting of X, he clarified that what was meant was ensuring that there was support and feedback for the mother, for example from the father and family, rather than supervision in a more formal sense. In the context of the positive aspects of the mother’s parenting as set out above the single expert identified the concern was as to dealing with fluctuations in the mother’s mental health over the long term.
This pointed in particular to the significance of the mother having appropriate social supports available to her. The single expert accepted that if the mother is more supported she is likely to function better. The single expert considered that the longitudinal issue for X flows from the effect on the mother of challenging life events that may lead her to regress and resort to maladaptive coping mechanisms. The key issue in relation to this was that the mother may, in dealing with difficulties in day-to-day life decompensate and function poorly, resorting to maladaptive coping strategies, even if benefitting from feeling supported by those around her. If there was such regression then he considered that there are potential impacts for the mother’s care of X.
The single expert considered that there is a very high degree of probability that such is likely to happen, and that while treatment may diminish the likelihood and impact, it should be anticipated that patterns of maladaptive functioning would continue on an indefinite basis.
To this end the single expert considered that the mother, if living in Victoria, would be unhappy and face a potentially deleterious impact on her psychological health. Similarly, if the mother was to stay in City B she faces potentially deleterious impacts on her mental health.
In contrast, a move to City F, and the potential happiness there could have a positive effect on the mother’s functioning.
Finally, Dr M considered that the mother is highly fragile, and that it is in the mother’s interest that she and X live proximate to each other. This leads in turn to a conclusion that the mother’s parenting capacity will be greater if X is living in the same location. However, he also considered that it is not in the mother’s interests to be the primary carer for X away from the father.
Family report

A court child expert prepared a family report in this matter on 30 May 2023.
The report writer observed X to be “a settled child who enjoys a warm relationship with both her father and her mother,” each being both “keenly engaged” and attentive to X, with reciprocal affection between X and each parent. Each parent appeared to the report writer to demonstrate skill “at being attuned to [X’s] needs.” X was assessed as having “a similarly close relationship with each parent.” She further observed no overt tension between the parents as X moved between them.
However the report writer also considered that the mother appeared to be “struggling to meet [X’s] needs particularly in [Region FF] where she feels unsupported and alone.”
The primary recommendation for X was that X spend equal time with both parents, an arrangement which, if able to be fostered, was recommended to commence immediately. The report writer recommended that this occur, preferably, in City B, given the multiple relocations already encountered by X, and in order to provide her with stability. The report writer conceded that the effect of a move to another region could be ameliorated if it was a move to a place where X has lived before, or to a place with which she is familiar. It can be observed that this is the case in relation to each of the proposals of the parties.
The recommendation that X live equally with both parents was applicable wherever X might live. A particular reason for such an arrangement was that the report writer considered that such would compensate for difficulties the mother encounters in providing for X’s needs. The report writer’s view, if the parents are not to live in the same area is that the father should be the primary live with parent, on the basis that the mother faces more challenges in relation to her parenting. Those challenges were identified to have come in three respects, being primarily in relation to the mother’s mental health, then in relation to the mother’s previous decision to remain in Country D, separating X from her father, and thirdly in relation to the mother’s history of alcohol and drug abuse.
The report writer accepted that there were a number of matters that could ameliorate the differential between the parties caused by these three aspects.
The first relates to improvement in the mother’s mental health. Her mental health is the matter of greatest concern, impacting upon the mother’s ability to provide for X’s needs. The report writer observed that across the period of her observation of the mother, incorporating a Child Impact Report prepared in September 2022 and the assessment for the Family Report in May 2023, approximating the period during which the mother has been compelled to return to and remain in City B, the mother’s mental health has declined, despite the mother having taken steps to access all appropriate support services while in City B.
Improvement in the mother’s health was identified as a matter that would reduce the capacity gap between the parents. The report writer considered that the mother receiving proper support would be helpful, and that a combination of professional support and support by having those who love the mother around her went hand in hand. She considered that the mother having proper support for her mental health would have a positive impact upon X.
As to the second matter the report writer considered that the mother underestimated the potential impact upon X of the extended removal of X from the father while she remained in Country D. The failure to recognise the importance of the father to X is indicated by the mother’s retention of X in Country D. The report writer further expressed concern at the mother’s view that X was able to tolerate separation from the father.
As to the third matter the report writer considered that if the mother’s report of her alcohol and drug use was materially wrong the concerns would be increased. If, on the other hand, the mother was able to deal with her alcohol and drug issues this too would narrow the capacity gap between the parents.
The report writer considered that X living in Victoria with the father was a preferable option to X living in City F with the mother due to the father’s mental health being better than the mother’s, and accordingly his parenting capacity being better. She considered that a differential between the parents remained despite some lack of insight being identified on the part of the father in relation to X’s needs. That lack of insight was shown in the father’s repeated taking of X to Victoria for extended periods since her return to City B, a step that did not adequately recognise the potential destabilising effects on X.
The submissions of the parties
The mother argues that there is a disparity in the capacity of the parties to facilitate a relationship with the other parent, particularly if that other parent is not nearby.
Firstly the mother points to the nature of the relationship that persisted between X and the father following her return from Country D, and then following her return from City F. Despite the limited nature of X’s interactions with the father over the preceding months, no deficit in the relationship was identified, no damage to the relationship was described, and the evidence supported no conclusion that there had been a degradation in the relationship.
During the period of absence the evidence supports the conclusion that the mother was diligent in fostering the relationship with the father through electronic communication between X and the father.
This means that despite the mother taking actions that had the potential to undermine the relationship between X and the father, in her retention of X in Country D and then her return to City F, such did not result.
A strong inference is available that the mother was both willing and able to foster the relationship between the father and X despite the distance between them.
Secondly the mother points to her conduct following X’s return to City B. During this time the mother has consistently consented to extra time between X and the father, over and above what was provided for in the orders. The father conceded during the trial that the mother has been generous in respect of X’s time with him.
The mother then asserted that a number of matters point to a relative deficiency on the part of the father in respect of both his attitude and ability to foster X’s relationship with the mother.
The mother points to the willingness of the father to have X return to his care in Australia without the mother (presumably in the event that the mother, following her retention of X, chose to remain in Country D). This is said to indicate a failure on the part of the father to consider the importance of the mother to X.
The father accepted that his thoughts, in suggesting such, had been directed to his relationship with X, rather than the mother’s relationship with X. To this extent, his insight at that point reflected that of the mother in her retention of X in Country D, where she accepted that her thoughts were directed to X’s relationship with her more than to the impact on X’s relationship with the father.
However, the father’s communication of a willingness to receive X even absent the mother occurs in a context where the mother had retained X in Country D absent agreement, and where she faced the prospect of a compelled return of X pursuant to the Hague mechanisms. There is little reason to consider that the mother would have remained in Country D.
In further criticism of the father’s capacity to foster a relationship between X and the mother, the mother points to an incident following the father having X for an extended period as a consequence of the mother asking him to, in order for the mother to have an extended visit to City F to enjoy the personal support that she has there, in the face of a decline in her mental condition.
At the father’s request, X embarked for Melbourne with the father in early 2023. As a result of the mother’s request, X was with the father for some weeks. Shortly following her return X entered the mother’s care.
The parties were then in contest about what occurred for X’s care the weekend after the mother’s return. I remained unclear as to whether X was due to go to the mother that weekend or not. In any event a conflict ensued about which weekend X would go with the mother. Assuming that the weekend following the mother’s return was scheduled to be with the father, and the mother sought that weekend, the mother criticised the father for only agreeing to the mother having that weekend on the basis that they swapped weekends. I am unable to conclude, if this is the correct characterisation of the interaction between the parties, that it was inappropriate for the father to agree in such a manner. Such a condition being pursued by the father merely returned X to the regular pattern, and so secured stability in the frequency that she was to spend with each parent.
The mother also points to the nature and frequency of the electronic communication between herself and X during extended periods when X is in the father’s care. The mother describes that on the visit with the father in October 2022 she spoke with X daily, with the visit in December 2022 and January 2023, there were five facetime calls, and in the visit between January 2023 and February 2023 there were seven facetime calls.
However, this is not sufficient to ground criticism of the father in the absence of a description of the mother pursuing something other than the communication that occurred, particularly noting the mother’s criticism of daily contact as excessive. Whilst the mother was also critical that the father’s family were not present for the calls, nothing turns on this.
These examples of electronic communication do not demonstrate a deficit in the father’s approach to X’s relationship with the mother.
The mother points to further examples of conduct by the father as being indicative of an unsupportive attitude on his part toward the mother, and in particular toward her mental health. For example, the father, in his affidavit material was unfairly critical of the mother in relation to the provision of extra time between himself and X. The father, during cross-examination, accepted that the mother had in fact been generous in agreeing to extra time between the father and X. His criticism of her was misplaced.
A further strong example was the father’s access to the mother’s private messages via an iPad, and his continuing use of those messages in the proceedings. This was highly invasive conduct on the part of the father, and a matter with potential to adversely impact the mother.
The mother also pointed to her complaints to the father about the frequency of contact from the father to and about X, and the fact that the father did not reduce the frequency following the mother’s complaint. At times this frequency was in excess of daily, and may be considered to have been burdensome to the mother. However, it occurred in a context where X had been withheld by the mother for an extended period and the father was dealing with both a mistrust of the mother and an uncertainty about his ongoing relationship with X. It should also be observed that this criticism occurs within a period that the mother says was demonstrative of her capacity to foster a remote relationship between X and the father.
The mother also identified an occasion when she asked the father to back off to reduce the pressure upon her, to which he replied that she should contact his lawyers. This is conduct that was unsupportive of the mother, in a context where the father understood that the mother had mental health vulnerabilities.
In the same vein, the mother submits that the father’s unwillingness to move to City F is demonstrative of a lack of insight, or perhaps commitment to supporting the mother’s mental health when he accepts that having two healthy parents is the best circumstance for X.
The father urged that the court should be cautious to avoid applying an compelling reasons test in relation to each parties’ proposal about where X should live, submitting that, while the mother sought to draw an adverse inference against the father as to his commitment to X and the maximising of the mother’s parenting capacity by his refusal to relocate to City F, each party had genuine reason for where it is that they have determined that they will live, and bad faith could not be attributed to either.
These matters do not cause me to doubt an overall commitment on the part of the father to fostering a relationship between the mother and X. He has demonstrated some lack of insight, but that lack does not translate into a lack of willingness to support X’s relationship with the mother if X was to live with him, particularly absent any deficit in the mother’s relationship with X having emerged despite these criticisms.
The mother urged that I find that the father is able to move to Country D should orders be made for the mother and X to live there. She pointed to the father’s previous familiarity from having stayed there with the mother in the past, and also his previous ability to acquire a visa.
This is not sufficient to render Country D as a practicable option for the father. Importantly, there can be no confidence that he would move to Country D. Rather, it can be confidently concluded that he would not.
The mother further urged that I should disbelieve the father where he says that even if X is to live in City F he will not. The mother points to the father’s concession that he would live in City B if necessary to share time with the mother. However, the father gave cogent reasons for considering that different factors are at play for him between City B and City F.
In relation to the father’s position that he will live in Victoria with X, the mother correctly observes that this was a late breaking proposal on the part of the father. It required the father obtaining leave to amend his response to encompass his current position, he having previously anchored himself to pursuing orders that would permit X to live in City B. The mother further points to the lack of detail provided by the father in relation to his proposal, and that his proposal did not make clear that he was proposing living at Town T rather than Melbourne. It may be observed that the father was unable to articulate clearly what his income or work arrangements would be on the family farm that he will work in. In assessing this aspect of the case I was directed to A & A: Relocation Approach (2000) 26 FamLR 382. In that case the Full Court reiterated what had been said by the High Court in AMS v AIF that the best interests of the child remain the paramount, but not the sole consideration, and that there is no requirement for compelling reasons to be demonstrated. The court in A & A emphasised the need to evaluate the proposals, and to weigh the advantages and disadvantages for the child’s best interests.
To the extent that it was submitted that A & A called for an assessment of whether a proposal to move is well thought out and long held, it may be accepted that the move to Victoria comes late in the proceedings, but it is no mere frolic on the part of the father. While he may not have a grasp on all of the details to accompany such a move, the nature of the move and arrangements in a general sense are well settled. To the extent that it is suggested that the arrangements are ill formed in a manner that deprives them of being able to be confidently identified as appropriate to the needs of X in a practical sense, or as being disingenuous on the part of the father, such a submission is rejected.
The mother also asserted that weight should be placed upon the fact that the mother was the applicant, on the basis that such indicates no lack of willingness to obtain orders for X to spend time with the father. This does not appear to be a matter of significant weight where the mother did so in the face of potential Hague proceedings.
The key contention for the father is that weight should be placed upon a disparity of parenting capacity between the parents, as identified by both the court child expert and the single expert. This, he submits, should be determinative in a context where the mother’s fragility renders her susceptible to fluctuations in her mental health and capacity as she encounters difficulties in the future.
The father urges the court to examine what the mother’s mental health is likely to be in Town T, City B, City F and Country D, the degree of certainty to which such may be anticipated, and the consequences thereof. These, it was accepted by the father, are not matters of certainty. Each of the parties urged that the future prospects of each scenario be examined through the lens of Isles & Nelissen, acknowledging that anticipation of the future is an analysis of the risks of different outcomes.
The father accepted that his parenting capacity would not be reduced if X were not to live with him. While disappointed, he would not be compromised in his mental health in the manner potentially faced by the mother. Further, should X live in City F, and a situation arise that required him to attend there, he would have the capacity to do so. Against that he submitted that problems in exercising parental capacity are more likely if X is living with the mother in City F or Country D, as opposed to living with the father in Town T.
He further accepted that the mother’s parenting capacity is likely enhanced by having X living nearby to her.
PRINCIPLES
The focus and the paramount consideration in determining what order should be made for X is, pursuant to s 60CA of the Family Law Act 1975 (Cth) (“the Act”), X’s best interests. Those are to be determined on consideration of the matters set out at s 60CC of the Act, in the legislative context of the objects and principles set out in s 60B of the Act and, where applicable, following the reasoning process set out at s 65DAA of the Act.
The objects and principles give a legislative background for the examination of the considerations contained at s 60CC of the Act in determining best interests. They are as follows:
(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.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
It may be thought that in any individual case the objects and principles may point in different directions and find different emphasis, depending on the circumstances of the particular child. It might also be observed that the objects and principles contain a degree of circularity, themselves being conditioned on the notion of the best interests of the child.

Similarly, no order will be made in relation to medications, illicit substances or drugs. Both parties have used illicit substances. Neither asserts that such use has put X at any direct significant risk. While the use of such substances may impact adversely on the mother in the context of her mental health struggles, the mother, like the father, is enjoined from use of illicit substances by the criminal law and can be expected to take advice from medical practitioners in relation to medication including drugs.
Finally, orders will be made for an equal sharing of time should the mother move to Victoria. I do not consider it is likely that the parties will live in proximity. To the extent that it remains a possibility it should be catered for, and, in accordance with the recommendation of the family report writer, should support the optimal outcome for X, being equal time with both of her parents.

I certify that the preceding two hundred and forty-two (242) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.
Associate:
Dated:21 July 2023

FATHER’S ORDERS SOUGHT - FATHER’S CASE OUTLINE DOCUMENT FILED 23 JUNE 2023
1.The parties have equal shared parental responsibility for X, born 2019.
2.That in the event that the mother does not live in the same Australian State or Territory as X, that the father have sole parental responsibility for X subject to:
(a)Except in the case of an emergency the father shall seek out and consider the mother’s views should she wish to express them prior to making a decision pursuant to this Order.

3.That X shall live with the father.

VICTORIA OR IN THE ALTERNATIVE, CITY B
4.That the father be permitted to relocate the residence of X to Victoria.
5.That in the event that X is not permitted to relocate permanently to Victoria on a final basis in respect of Order 4, that X continue to reside in Region FF.

If the mother lives in the same state as X
6.If the mother lives in the same State as X, that X shall spend time with the mother during school terms as follows:-
(a)Each alternate weekend from 3:00pm Friday until 9:00am Monday;
(b)Each Wednesday from 3:00pm until Thursday at 9:00am; and
(c)Such other times as agreed in writing.

7.That during school holiday periods X shall live with and spend time with her parents as follows:
(a)X will spend one half of all school holidays with each of her parents as agreed, and failing agreement as follows:
(i)in 2023 and alternate years thereafter:
A.with the father, from the conclusion of the last day of the day care or school term to 4:00pm on the middle Saturday; and
B.with the mother, from 4:00pm on the middle Saturday to the commencement of the first day of the new day care or school term.

(ii)in 2024 and alternate years thereafter:
A.with the mother, from the conclusion of the last day of the day care or school term to 4:00pm on the middle Saturday; and
B.with the father, from 4:00pm on the middle Saturday to the commencement of the first day of new day care or school term.

8.That during notwithstanding any other Orders, X shall live with and spend time with her parents for the following special events as follows:
(a)During the Christmas period as agreed, and failing agreement:
(i)in 2023 and alternate years thereafter:
A.with the father, from 3:00pm on Christmas Eve to 3:00pm on Christmas Day; and
B.with the mother, from 3:00pm on Christmas Day to 3:00pm on Boxing Day.

(ii)in 2024 and alternate years thereafter:
A.with the mother, from 3:00pm on Christmas Eve to 3:00pm on Christmas Day; and
B.with the father, from 3:00pm on Christmas Day to 3:00pm on Boxing Day.

(b)If X is not already in his care, the father spend time with her on the Father’s Day weekend, from 3:00pm on Saturday to the commencement of school on Monday.
(c)If X is not already in her care, the mother spend time with her on the Mother’s Day weekend, from 3:00pm on Saturday to the commencement of school on Monday.
(d)On X’s birthday, the parent with whom she is then spending time shall facilitate the other parent’s time with her as agreed, and failing agreement:
(i)on a day care or school day, from after day care or school to 6:00pm; and
(ii)on a non-day care or school day, from 10:00am to 2:00pm.

(e)If X is not already in their care, the parties’ spend time with X on their respective birthdays as agreed, and failing agreement:
(i)on a day care or school day, from after day care/school to 6:00pm; and
(ii)on a non-day care or school day, from 10:00am to 2:00pm.

(f)If X is not already in his care the father spend time with her during Orthodox Easter, from 3:00pm on Good Friday to the commencement of day care or school on Monday (or 3:00pm if it is not a day care or school day).
(g)During the Easter period:
(i)If it does not coincide with Orthodox Easter, the mother spend time with X from 3:00pm on Good Friday to 3:00pm on Easter Monday; and
(ii)if it does coincide with Orthodox Easter:
A.In odd-numbered years, the father spend time with X from 3:00pm on Good Friday to 12:00pm on Sunday and the mother spend time with her from 12:00pm on Sunday to 3:00pm on Monday; and
B.In even-numbered years, the mother spend time with X from 3:00pm Good Friday to 12:00pm on Sunday and the father spend time with her from 12:00pm on Sunday to 3:00pm on Monday.

(h)Such further or other times as agreed between the parties in writing.

9.Save for when changeover occurs at school, and unless otherwise agreed between the parties in writing, the party with whom X is then spending time shall deliver X to the other party’s home at the conclusion of their time with her.

If the mother relocates to Country D
10.If the mother relocates to Country D that X shall spend time with the mother as follows:
(a)Prior to X commencing primary school:
(i)in City B, on two occasions per year, for up to 14 consecutive days per occasion, with such times and dates to be agreed between the parties in writing; and
(ii)in the location at which the mother is residing, on one occasion per year, for up to 30 consecutive days, with such times and dates to be agreed between the parties in writing.

(b)Upon X commencing primary school:
(i)in City B, for up to 10 consecutive clays during each school term holiday period, with such times and dates to be agreed between the parties in writing, with the mother’s time to conclude no later than the day before the commencement of the new school term; and
(ii)in the location at which the mother is residing, for up to 21 consecutive days during the long summer holiday period, with such times and dates to be agreed between the parties in writing, with the mother’s time to conclude no later than one day before the commencement of the new school year.

(c)Such further or other Orders as agreed between the parties in writing.

If the mother relocates to live in City F:
11.For the purpose of Order 4 and 5, if the mother relocates to City F that X live with the father;
12.The mother spends time with X as follows:
(a)Until X commences primary school, for one weekend per month on dates and times as agreed between the parties in writing, and failing agreement, from 3:00pm on the third Friday of each month to 4:00pm on the third Sunday of each month, with such time to occur in City B or City F.
(b)Upon X commencing primary school:
(i)during the school term periods, in accordance with paragraph 12(a).
(ii)for up to 10 days during each school term holiday period in City B, with such times and dates to be agreed between the parties in writing, with the mother’s time to conclude no later than one day before the commencement of the new school term; and
(iii)for up to 21 days during the long summer holiday period in the location at which the mother is residing, with such times and dates to be agreed between the parties in writing, with the mother’s time to conclude no later than one day before the commencement of the new school year.

(c)Such further or other Orders as agreed between the parties in writing.

Changeover if the mother does not live in the same State as X
13.For the purposes of paragraphs 10 and 12:
(a)the mother shall provide no less than 28 days’ prior written notice to the father as to her proposal to spend time with X, including the dates, times and location she intends to spend time with her;
(b)the father shall provide a response within 7 days of receiving the mother’s written notice to confirm that time will occur as sought or provide an alternative proposal and detailed reasons as to why the time cannot occur as proposed by the mother; and
(c)the mother will ensure that X attends day care or school, any scheduled school related activities and extra-curricular activities during any period that she spends time with X in City B.

14.For the purposes of changeover:
(a)When the mother is spending time with X in her place of residence, the mother shall collect her from her father’s home at the commencement of her time with her and return her to the father’s home at the conclusion of her time with her; and
(b)when the mother is spending time with X outside her place of residence:
(i)prior to X attaining the age of 8 years, the mother shall travel to City B not less than two days before the intended travel to collect her and shall travel with her to City B or Melbourne at the conclusion of her time with her; and
(ii)upon X attaining the age of 8 years, she be permitted to travel as an unaccompanied minor.

15.That should the mother not live in the same State as X, that the parties shall equally share the cost of X’s flights to and from her place of residence, including any additional fees for travelling as an unaccompanied minor, and be solely liable for their own flights associated with X’s travel.

Mother’s Mental Health
16.That before X spend time with the mother outside of Australia the following must occur:
(a)the mother must attend upon a psychologist (or other relevantly qualified mental health professional) with a copy of Dr M's Psychiatric Assessment of her;
(b)the mother must comply with any treatment/ therapeutic work recommended by her treating mental health professional, including but not limited to attending for counselling and taking any prescribed medication;
(c)the mother must provide the father with the name and contact details for her treating mental health professional;
(d)the mother must provide to the treating mental health professional an irrevocable authority to provide the father with any information about the mother’s mental health that might be relevant to the safety and wellbeing of X in any periods of unsupervised time; and
(e)the mother must provide the father with evidence of supervised screening for illicit substance use showing that she has not used illicit substances for six consecutive months.

Restraint
17.The parties are restrained from consuming non prescribed medication, cannabis or illicit substances for a period of twenty four hours prior to X coming into their care and for the duration of the time that X is in their care.

Communication
18.When X is not in their respective care, the parties be at liberty to audio call and/or video call X at reasonable times, with the party with whom she is then spending time to facilitate the calls.

Travel
19.During their respective time with X, the parties be permitted to travel interstate with her provided that the travelling parent notify the other parent at least 14 days before their departure and provide a confirmed travel itinerary, which includes flight details, dates of travel and specific details as to the location/s where X will be staying, including the address.
20.During their respective time pursuant to these orders and unless otherwise agreed, the parents be permitted to travel overseas with X provided that the travelling parent provides to the other parent with, within 21 days prior to the proposed travel:
(a)a confirmed travel itinerary which includes flight details, dates of travel and specific details as to the location/s where X will be staying, including address; and
(b)a telephone number at which X can be contacted in each location.

21.When X travels outside of Australia whilst in the mother’s care:
(a)the mother shall sign and return to the father, no less than 14 days prior to the departure date a statutory declaration confirming that she will return X to City B on the agreed return date; and
(b)if the mother does not return X to her primary residence, she be solely liable for the father’s legal costs on an indemnity basis (incurred in Australia and/or overseas) of recovering X to Australia.

22.The proposed travel shall not be to a country which is not a signatory to the Hague Convention on Civil Aspects of International Child Abduction or categorised as “do not travel” or “reconsider your need to travel” by unless otherwise agreed between the parties in writing.
23.If the parties agree that X is permitted to travel overseas outside of their respective time pursuant to these orders, the non-travelling parent be provided with make-up time for the exact number of nights that he/she missed with her.
24.Each party shall do all acts and things and sign all documents necessary and to enable the X's Australian passport to maintained from time to time, with the costs to be shared equally.
25.X’s passport be held by the father and, in the event that the mother is travelling overseas with X, the father shall deliver the passport to the mother in City B one day prior to the date of X’s departure and the mother shall return the passports to the father within one day of X’s return to Australia.

Religion
26.That X be permitted to be baptised as Orthodox no later than 31 December 2023.
27.That the father be permitted to choose the Godfather and the mother be permitted to choose the Godmother.
28.If the mother cannot find a Godmother who is Orthodox before 1 November 2023, that the father be permitted to choose the Godmother.

Medical and education
29.Each parent as soon as practicable notify the other in the event that X suffers any serious illness or injury requiring urgent or emergency treatment whilst in their care and provide to the other parent the particulars of such illness, injury and any treatment being received and the name and address and contact details of the treatment provider or location at which X is a patient.
30.Each parent make available to the other all medication prescribed for X that requires administration during time periods when she is in the other’s care and each parent will administer such medication as prescribed or required and shall at the conclusion of time return the medication to the other parent.
31.Each parent authorise and direct current and future medical and health practitioners treating X to provide both parents with all information as to her attendance and/or treatment, at their own request and cost, and each parent will keep the other updated as to all medical appointments attended by X.
32.Each parent authorise and direct X’s day care/school and extra-curricular providers to provide both parents with all information usually provided to parents regarding her attendance, including but not limited to notices, information, newsletters and all reports, such information to be provided at the expense of the requesting parent.
33.Each parent be permitted to attend all of X’s school activities including extra-curricular activities, routinely attended by parents, included but not limited to parent-teacher interviews, school concerts, sporting events and school functions and presentation nights.

MOTHER’S ORDERS SOUGHT - CASE OUTLINE DOCUMENT FILED 22 JUNE 2023
1.That all previous orders be discharged.
2.The Mother and the Father have equal shared parental responsibility for the child, X born 2019;
3.The Mother be permitted to relocate to Country D with X;
4.X live with the Mother;
5.X spend time with the Father, if he does not to relocate to Country D, as follows:
By telephone, skype or Face Time on three occasions each week, as agreed between the Mother and the Father and failing agreement between 6pm and 8pm Toronto time;
In Country D on two occasions per year, at a location nominated by the Mother, with such times and dates and duration to be agreed between the Mother and the Father;
In Australia, on one occasion per year, at a location nominated by the Father, with such times and dates and duration to be agreed between the Mother and Father;
Such further or other times as agreed between the Mother and the Father; and
In respect to Orders 4b. 4c. and 4d. above:
The Mother and the Father are responsible for the cost of their respective airfares and the cost of X’s airfares will be equally shared by them;
Upon X commencing primary school the time is to occur during the school holiday periods applicable to the school in which X is enrolled;
For X’s birthday, X is to spend time with the Mother from 10:00am until 3:00pm in odd numbered years;

It is noted that X’s birthday occurs in the Country D summer school holiday period during which she is likely to be spending time with the Father.

6.X spend time with the Father, if he relocates to Country D, as follows:
Each alternate weekend from after school or day care on Friday until the commencement of school or day care on Monday;
Each Wednesday from after school or day care until the commencement of school or day care on the Thursday;

Upon X turning 5 years old, in an equal shared care arrangement, from Friday after school (or 5.00pm on a non-school day) to the following Friday before school (or 5.00pm on a non-school day) and each alternate week thereafter;
Upon X turning 5 years old for half of each school holiday period, being the first half in even numbered years and the second half in odd numbered years;

7.Such further or other times as agreed between the Mother and the Father.
8.That in the event X is not permitted to relocate permanently to Country D on a final basis in the alternative to Orders 2 to [5] above, the following shall apply:
The Mother be permitted to relocate to City F with X;
X live with the Mother;
X spend time with the Father, if he does not to relocate to City F, as follows:
By “Facetime” as agreed but in the absence of agreement, at least twice a week;
Until X turns 5 years old:

6.c.ii.1 For two weekends per month to be on days and times as agreed, but in default of agreement, the first Friday of the month from 9am until 6pm Monday, and the third Friday of the month at 9am until 6pm Monday, with such time to be in City B or City F
6.c.ii.2 During the period from 23 December to 23 January “Christmas Period”) the first half in even years and the second half in odd years in City F or City B.

(iii)Upon X turning 5 years old,
6.c.iii.1 For one weekend per month to be on days and times as agreed, but in default of agreement, the third Friday of the month after school until 4pm Sunday, with such time to be in City F or City B.
6.c .iii.2 For half the Term 3 and 4 school holiday periods applicable to the school in which X is enrolled, first half in even years and the second half in odd years, with such time to be spent in City B or City F

6.c .iii.3 For half the Term 1 and 2 school holiday periods applicable to the school in which X is enrolled, first half in odd years and second half in even years, with such time to be spent in City B or City F

iv. Such other time as may be agreed between the parties

(d)X spend time with the Father, if he relocates to City F, as follows:
(i)Each alternate weekend from after school or day care on Friday until the commencement of school or day care on Monday;
(ii)Each Wednesday from after school or day care until the commencement of school or day care on the Thursday;
(iii)Upon X turning 5 years old, in an equal shared care arrangement, from Friday after school (or 5.00pm on a non-school day) to the following Friday before school (or 5.00pm on a non-school day) and each alternate week thereafter;
(iv)Upon X turning 5 years old for half of each school holiday period, being the first half in even numbered years and the second half in odd numbered years;
(v)Such further or other times as agreed between the Mother and the Father.

(e)In respect to Orders 6(c)ii and 6(c)iii and 6(c)iv above:
(i)The Mother and the Father are responsible for the cost of their respective airfares and the cost of X’s airfares will be equally shared by them

9.For the purposes of the Father’s time pursuant to Orders 4b. 4c. and 4d and 6.c. ii.1, 6.c.iii.1, 6.c.iv:
(a)the Father is to give no less than (14) days’ written notice to the Mother of his proposal to spend time with X (where applicable), including the exact time and dates he intends to spend time with X, and where applicable, the location in which time will be spent (i.e. City F or City B);
(b)the Mother shall respond to the proposal within seven (7) days of receipt of such written notice to confirm that time will occur as sought, or an alternative time if there is a reasonable excuse (which must be detailed) as to why the sought time cannot occur when proposed by the Father; and
(c)the Father will ensure that X will attend school, scheduled school-related activities and agreed extra-curricular activities during any period that he spends time with X in City F or Country D.

10.Notwithstanding the above Orders, if X and the relevant parent are in the same city, unless otherwise agreed between the parties in writing, X spend time with each parent during special occasions each year as follows:
(a)On Mother’s Day and the Mother’s birthday, with the Mother from 5.00pm on Saturday preceding the Mother’s Day or the Mother’s birthday until 5.00pm on Mother’s Day or the Mother’s birthday;
(b)On Father’s Day and the Father’s birthday, with the Father from 5.00pm on Saturday preceding the Father’s Day or the Father’s birthday until 5.00pm on Father’s Day or the Father’s birthday;
(c)Save as to Order 4.e .iv above, for X’s birthday, with the parent whom they are not living with at the time, from 3:00pm until 6:00pm on her birthday if her birthday falls on a school/day care day, or 1:00pm until 6:00pm if it falls on a non-school/day care day; and
(d)For Easter, with the parent whom they are not living with at the time, from 9.00am on Good Friday until 12.00 noon on Easter Sunday;
(e)For Christmas, with the parent whom they are not living with at the time, from 9.00am on Christmas Eve until 12.00noon on Christmas Day.

11.That the father sign any required documentation for X to obtain a Country D passport and
(a)return the same to the Mother within 14 days of a request being made by the Mother.

12.Pursuant to section 65Y of the Family Law Act 1975 (Cth) the Mother and Father each be at liberty to travel overseas with X during their time with X as provided for in these Orders and at times as agreed in writing, and shall not travel with X to countries where the DFAT travel warning is ‘level 3’ or above.
13.For the purposes of Order 10 herein:
(a)The party proposing to take X overseas shall give the other party at least two (2) calendar months prior written notice of the proposed trip overseas including:
(b)The proposed departure and return dates;
(c)Full details of who is travelling with X including the full names and relationship to the X/and or parent;
(d)Flight details (including names of airlines and flight numbers) and, if applicable cruise details (including full details of the cruise liner);
(e)Full travel itinerary of all locations where X is visiting, including arrival and departure dates for each city visited and all details of where X will be staying overnight (including full addresses); and
(f)Full details of the means of contacting X and parent while travelling overseas including landline and mobile phone numbers;
(g)The travelling party provide to the other party with a copy of the airline return tickets (or cruise ticket if applicable) no less than 14 days before the proposed departure date; and
(h)The travelling party’s proposal for make-up time provided that such make up time shall occur no later than six weeks following the travelling party and the child’s return from the travel

File number(s):	CAC 596 of 2022
Judgment of:	GILL J
Date of judgment:	21 July 2023
Catchwords:	FAMILY LAW – PARENTING – Proposed international or domestic relocation – Equivalent relationships with both parents – Mental health vulnerabilities for a parent – Risk of degradation of that parent’s parental capacity – Longitudinal challenge to parenting – Effects of location on mental health and parenting capacity – Preference given to parent with better longitudinal prospects for parenting capacity
Legislation:	Family Law Act 1975 (Cth) - ss 60B, 60CA, 60CC and 65DAA Hague Convention on the Civil Aspects of International Child Abduction 1980
Cases cited:	A & A: Relocation Approach (2000) 26 FamLR 382 Isles & Nellisen [2022] FedCFamC1A 97 Jollie & Dysart [2014] FamCAFC 149 Morgan & Miles (2007) FLC 93-343 MRR v GR [2010] HCA 4 Phillips & Hansford (No 2) (2019) 60 Fam LR 160 Taylor and Barker (2007) FLC 93-345 U v U [2002] HCA 36
Division:	Division 1 First Instance
Number of paragraphs:	242
Date of hearing:	26-29 June 2023
Place:	Canberra
Counsel for the Applicant:	Ms Davis
Solicitor for the Applicant:	Vozella Lawyers
Counsel for the Respondent:	Mr Harper
Solicitor for the Respondent:	Elringtons Lawyers

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:	21 JULY 2023