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
Phillips & Hansford (No 2) (2019) 60 Fam LR 160
Taylor and Barker (2007) FLC 93-345
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…
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- Rouanet & Mikatos (No 3) [2023] FedCFamC1F 604
- Case
- [2023] FedCFamC1F 604
- Decision Date
CaseChat Overview and Summary
The court considered the evidence about the parents' circumstances and the effects of each proposed relocation on X's best interests. The court found that while both parents have difficulties, the father had better longitudinal prospects for parenting capacity. The court found that the mother's mental health issues, combined with her limited insight and problems with empathy, represented a serious limitation on her capacity to parent. The court noted that the mother has shown flexibility in relation to X's time with the father, agreeing to a number of proposals for further time, although the mother did not agree to all proposals. The court also found that the father's ongoing requests to permit X to travel to Victoria with him may have been disruptive to X. The court considered the geographical considerations, including the characteristics of each of the places that the parties might live in, and what their attitude is to living in each of the places. The court found that City B, where the parties currently live, could not be regarded as a place of support for either parent and may be excluded from consideration as a potential outcome. The court also found that the mother's primary application is to live with X in Country D, where the mother has grown up. The court considered the evidence about the parents' capacity to provide for X's needs, including evidence about the parents' use of illicit drugs and alcohol, and evidence from a forensic psychiatrist about the mother's mental health and parenting capacity. The court found that the father had better longitudinal prospects for parenting capacity. The court made detailed orders for X to spend time with the mother, including provisions for contact by electronic communication and overnight visits. The court also made orders for the parents to share the costs of X's travel and to maintain X's passports. The court made orders for the parents to notify each other of any serious illness or injury requiring urgent or emergency treatment whilst in their care, and to authorise and direct X’s medical and education providers to provide both parents with all information as to her attendance and/or treatment. The court also made orders for the parents to attend all of X’s school activities routinely attended by parents.
Orders
Orders of the court
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 www.smartraveller.gov.au/destinations, 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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
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.