Miles & Miles
[2022] FedCFamC1F 360
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Miles & Miles [2022] FedCFamC1F 360
File number(s): SYC 5669 of 2021 Judgment of: REES J Date of judgment: 23 May 2022 Catchwords: FAMILY LAW – REVIEW OF SENIOR JUDICIAL REGISTRAR’S DECISION – Application by the father to spend unsupervised time with the children – Discussion of ‘meaningful relationship’ – Where the children are able to maintain a relationship with their father that is important, significant and valuable even if the time they spend with him is reduced – Children to spend alternate weekends with the father subject to him not drinking before or while the children are in his care. Legislation: Family Law Act 1975 (Cth) s 60CC Cases cited: Godfrey & Sanders (2007) 208 FLR 287
McCall & Clark (2009) FLC 93-405
Moose & Moose (2008) FLC 93-375
Division: Division 1 First Instance Number of paragraphs: 42 Date of hearing: 20 May 2022 Place: Sydney Counsel for the Applicant: Mr Dickson QC Solicitor for the Applicant: Pickering Pendleton Counsel for the Respondent: Mr Wong Solicitor for the Respondent: Vizzone Ruggero Twigg Lawyers Independent Children’s Lawyer: Mr Samuel ORDERS
SYC 5669 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MILES
Applicant
AND: MS MILES
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
REES J
DATE OF ORDER:
23 MAY 2022
THE COURT ORDERS:
1.That the children Y born in 2009, X born in 2011 and Z born in 2013 (“the children”) live with the mother.
2.That the father not consume any alcohol during any period when the children are in his care or for twelve hours before the children come into his care.
3.That the father attend random CDT testing and/or liver functioning testing upon the request of the Independent Children's Lawyer such testing to be undertaken within 48 hours of such request.
4.That the father or his legal representative shall provide a copy of the results of the tests referred to in Order 3 within 48 hours of the receipt of such test results by the father.
5.That the children spend time with the father during school terms each alternate weekend commencing on Friday 27 May 2022 from the end of school until the start of school on Monday or 9.00 am on Monday if the weekend is a long weekend and each Wednesday afternoon from after school until 7.30 pm when, unless otherwise agreed, the father shall return them to the mother’s residence.
6.That during school holidays, the children spend time with the father each weekend from 3.00 pm on Friday until 9.00 am on Monday and, unless otherwise agreed, the father shall collect the children from the mother’s home at the commencement of the time and return them at the end of the time.
7.That weekend time during school terms re-commence on the first weekend after the start of the school term.
8.That in the event that Fathers’ Day falls on a weekend when the children are not in the father’s care, they shall spend time with the father from 9.00 am until 7.30 pm on that day, the father, in the absence of agreement, to collect the children from the mother’s home and return them there.
9.That each parent be permitted to communicate with the children by telephone or FaceTime or similar electronic means each day and, in the absence of agreement, between 7.00 pm and 7.30 pm.
10.That in the event that either child becomes ill or is subject to a medical emergency, the parent who has care of the child must contact the other parent as soon as practicable to inform them of the situation.
11.That the parties each give the other party seven (7) days written notice of any proposed change to their home address and contact telephone numbers.
12.That neither party shall speak about the other parent, or a partner of the other parent or family member, in a manner that is critical, insulting or derogatory, either in the presence of the children or within their hearing.
13.That the parties will use their best endeavours to ensure that no person speaks about the other parent, or a partner of the other parent or family member, in a manner that is critical, insulting or derogatory, either in the presence of the children or within their hearing.
14.That neither party shall discuss with the children these proceedings, or a change to these orders, or permit any other person to do so except as may be necessary pursuant to an order of the Court.
15.That neither party shall interrogate the children about events or conversations in the household of the other parent.
16.That neither party shall use physical means to discipline the children or permit any other person to do so.
17.That each parent is permitted to communicate directly with the children’s school sporting bodies and medical practitioners to obtain any necessary relevant information and/or documents about the children’s progress and this order shall constitute authority for such communication.
18.That both parties are hereby restrained from:
(a)Consuming, ingesting, using or otherwise being under the influence of any illicit substance for twenty-four (24) hours prior to or during all time spent with the children, and from bringing the children into contact with any other person who has done so;
(b)Abusing prescription or over-the-counter medication for twenty-four (24) hours prior to or during all time spent with the children, and from bringing the children into contact with any other person who has done so;
(c)Permitting the children to consume alcohol at any time.
19.That both parties are restrained from communicating to the children in any way:
(a)In the event parenting arrangements in the orders of 25 February 2022 are not continued, that such was by way of court order;
(b)Any information regarding the incident between the father and Ms C on 21 March 2022 including but not limited to police involvement or associated court actions; and
(c)In the event orders are made restraining the father and Ms C being present with the children in a private setting, the fact or content of those orders.
20.That other than in an emergency, the father and the mother communicate through the Our Family Wizards application.
21.That not later than 4pm on 1 July 2022, the father is to forthwith provide to the mother and the Independent Children’s Lawyer a written report from his counsellor setting out the following:
(a)The terms of engagement.
(b)The number and frequency of appointments attended by the father to date.
(c)The progress of the father’s counselling.
(d)Any views in respect to the father’s consumption of alcohol.
(e)Issues relating to anger management.
(f)Any recommendations made.
(g)The father’s compliance with such recommendations.
(h)Any other matters the counsellor/therapist considers to be relevant.
22.That the father have leave to provide to his counsellor a copy of the Court orders dated 7 April 2022 along with a copy of these reasons for judgement and orders.
23.That the father shall continue to attend upon his counsellor or/therapist until such time that his counsellor/therapist advises him in writing that such counselling and or therapy is no longer required by the father.
24.That upon the release of the single expert report the Independent Children’s Lawyer may approach the docket registrar for the purpose of arranging a Registrar assisted mediation conference on a date to be advised NOTING THAT such conference should take place prior to the 2022/2023 summer school holidays.
25.That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.
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 Miles & Miles has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REESJ:
Mr Miles (“the father”) and Ms Miles (“the mother”) are the separated parents of three children, Y born in 2009; X born in 2011 and Z born in 2013, (“the children”).
In February 2022, the father and mother attended mediation and reached an agreement that the children would spend equal time with each of them. Those arrangements were formalised by consent orders made on 25 February 2022 (“the February orders”) which provided for a week about arrangement with the children changing residences on Fridays. The orders contained provisions restraining each parent from consuming illicit substances before and while the children were in the care of that parent; abusing prescription medication; denigrating the other parent; discussing the proceedings or the evidence and permitting the children to consume alcohol.
On 7 April 2022, a Senior Judicial Registrar discharged the February orders and ordered that the children have supervised time with the father each Saturday and at other times as agreed (“the April orders”).
An Independent Children's Lawyer (“ICL”) was appointed and orders were made for the father to undergo drug and alcohol testing. He does not seek to review those orders. Thus far, the father has had one urinalysis test and one hair follicle test.
The father now seeks to review those orders and the matter therefore proceeds as a hearing de novo.
The father seeks the reinstatement of the regime provided by the February orders.
The mother seeks to preserve the supervised regime provided in the April orders.
The ICL proposes that the father have day time only time with the children, on alternate weekends and Wednesday afternoon which could be extended to overnight time if the children were supervised by the paternal grandmother or aunt. The ICL also proposes that the father undertake CDT testing which the father does not oppose.
The change in the parenting orders was as a result of an incident that occurred on 21 March 2022 between the father and his girlfriend, Ms C. The father and Ms C do not live together.
The mother was alerted to the events by a neighbour who messaged her early in the morning on 22 March 2022 telling the mother about screaming and yelling coming from the father's house and that the police attended and the father was taken away.
On 22 March 2022, the father was arrested and charged with four counts:
·Assault occasioning actual bodily harm.
·Two counts of common assault.
·Intentionally choke etc person without consent.
In relation to each charge, the victim is Ms C.
The father has entered a not guilty plea to each charge and the matter will be heard later in the year.
Because the father has been charged and will be tried, he has not deposed to the events but I propose to summarise the facts which will be relied upon by the police.
The police allege that the father and Ms C attended a function on the evening of 21 March 2022. They both drank to excess. They argued. In the ride-share car on the way home, the argument continued. The father slapped Ms C’s face. She was fearful and asked the driver to stop the car. She got out. The father followed. Ms C said she would book a car for herself and that she did not want to go home with the father. He took hold of her upper arms and pushed her, causing her to fall to the ground. Ms C told the police that she immediately felt pain in her right upper arm and that the arm was bruised. The father pleaded with Ms C to get back in the car and she did so.
When they returned to the father’s home, their argument continued. Ms C called 000 at 11.52 pm. The father snatched the phone from her and terminated the call. He then hid Ms C’s phone.
Ms C walked into the bedroom. The father followed, shouting at her. She continued to say that she did not want to stay. He continued shouting at her then slapped her face with an open palm. Ms C tried to leave. The father stopped her at the bedroom door by putting both his hands on her shoulders. She tried to move him away and there was a scuffle. The father took Ms C by the neck, pushing her into a cupboard and choking her. Ms C shouted “stop” but the father did not stop. Ms C told police that the father choked her for about ten seconds and then let her go. She fell to the ground but did not lose consciousness.
The police arrived at 12.28 am and could hear Ms C screaming and shouting for help. Ms C opened the door and ran to the police officers, pleading for help. Police describe Ms C as “extremely distressed and upset”. She expressed fear to the police and said that the father’s behaviour appears to be escalating when he drinks.
A provisional Apprehended Violence Order (“AVO”) was made for the protection of Ms C. The matter was returnable in the Local Court in March 2022. The order provided that the father must not approach Ms C within 12 hours of consuming alcohol and from drinking or taking drugs with Ms C. Since the father deposed in his affidavit sworn 18 May 2022 that he “cannot” consume alcohol in Ms C’s presence, I assume that the AVO has been continued.
Ms C has sworn an affidavit in support of the father’s application. She deposed that the father was “extremely intoxicated” and that she was also intoxicated but not to the same extent. She deposed that she is not in fear of the father but that is not what she told the police.
Ms C’s statement to the police that “the father’s behaviour appears to be escalating when he drinks” does not suggest that this was either an isolated event or a one off event. It suggests that there have been incidents before between the father and Ms C which were not as serious as this event.
The mother in her affidavit raises allegations of alcohol abuse by the father during the relationship; of family violence and of coercive, controlling behaviour. These allegations are inconsistent with her having consented to orders in February 2022 for the children to spend alternate weeks with the father.
The father deposed that he has not consumed alcohol since 21 March 2022 and he has had regular drug and alcohol testing including a hair follicle test. I note that he has, in fact had one hair follicle test and one urinalysis test. I accept that he will continue to undergo testing. He consents to an order that he not consume alcohol before and during any time the children spend with him.
The paternal grandmother and the children’s aunt, who are the supervisors nominated in the orders made in April 2022 are not available to supervise for extended periods although they have supervised the time thus far on a day time basis.
The paternal grandmother, at the request of the mother, has given an undertaking not to denigrate the mother in the presence or hearing of the children.
CONSIDERATION
It is not in dispute that the children will benefit from a meaningful relationship with their father and it is evident, because the parents agreed that they should spend half of their time with him, that they have such a relationship.
However, the question of what is meant by the term “meaningful relationship” was considered by the Full Court in the decision of McCall & Clark (2009) FLC 93-405 where their Honours said, commencing at [109]:
The Act does not contain a definition of “meaningful”, nor does it provide any specific criteria to assess how parents either have, or should have, a “meaningful involvement” in a child’s life. It does not give guidance to the interpretation of the phrase “meaningful relationship”.
It is necessary we construe the language of the statute to determine whether the import of the legislation is clear without reference to extrinsic material.
The Macquarie Dictionary defines the adjective “meaningful” as “full of meaning, significant. Significant is defined as “important; of consequence”
The Shorter Oxford English Dictionary defines “meaningful” as “Full of meaning or expression; significant …” “Significant” is defined as “Having or conveying a meaning; Expressive; suggesting or implying deeper or unstated meaning … important, notable; consequential ...”
We turn first to the objects clause (s 60B(1) [of the Family Law Act 1975 (Cth)]). The purpose of an objects clause is “to indicate the intended purpose of the legislation” (Pearce, D C & Geddes, R S, Statutory Interpretation in Australia, 6th ed, Lexis Nexis, Australia, 2006) The learned authors further note at 4.42… “objects clauses are used as an aid to the construction of words of legislation. Gleeson CJ referred to the legislative declarations of the objects of an Act as giving practical content to abstract terms such as ‘reasonable’, ‘justification’ and ‘satisfactory’ in Russo v Aiello (2003) 215 CLR 643 at 645”.
Section 15AA of the Acts Interpretation Act 1901 (Cth) provides for a purposive construction of a statute.
The phrase “meaningful relationship” in the context of s 60CC(3)(a) has, not surprisingly, been considered in a number of decisions since the introduction of the amending Act. In Mazorski & Albright (2007) 37 Fam LR 518 Brown J, after setting out the definition of “meaningful” and “meaning”, said at paragraph 26:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
The Full Court in Moose & Moose (2008) FLC 93-375 adopted the statement of Kay J, sitting as a single Judge in Godfrey & Sanders (2007) 208 FLR 287, who stated:
...even if the move results in a diminution of the quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
It is not necessary, to maintain the children’s relationship with their father, that they spend half their time with him. They will be able to maintain a relationship that is important, significant and valuable if they spend a reduced amount of time with him. The children have told the ICL that they want to spend more time with their father than they currently do.
The children were not exposed to the incident on 21 and 22 March 2022. I do not accept, because the mother in February 2022 agreed that they should spend equal time with the father, that she can realistically contend before me that they have been exposed to family violence before the incident on 21 and 22 March 2022.
However, I am concerned that the father's alleged behaviour on that occasion raises serious concerns about his capacity to be violent to an intimate partner and thus to others, and about his capacity to control his drinking and his behaviour when he has been drinking.
The father has not undergone or arranged any counselling in relation to alcohol use.
He has, however, arranged to see a counsellor in relation to anger management. He deposed:
…I am not sure that anger was the problem, however, I am willing to explore the issues and circumstances which led to the incident on 21 March 2022…
The father has attended one appointment with the anger management counsellor and there is no evidence from that counsellor. There is no evidence about the extent of the father’s engagement with the counsellor, the proposed treatment plan or any diagnosis. Senior counsel for the father submitted that the father’s engagement with the counsellor did not constitute an admission that the father has an anger management problem.
Whilst I accept that he has not consumed alcohol since 21 March 2022, and that it is to be hoped that he will continue to abstain, he has not yet demonstrated that he can maintain abstinence on long term basis.
Similarly, while he may be able to abstain, in the future, from alcohol for a weekend, whether he can do so for a week at a time into the future is untested and unknown.
These are matters that will ultimately be the subject of evidence in the substantive proceedings when there will have been more opportunity for the father to demonstrate that his capacity to control his drinking and his behaviour is acceptable and that his drinking and consequent behaviour poses no unacceptable risk to the children.
That evidence is not available before me.
It is in the children’s interests to normalise the time they spend with their father, subject to those arrangements being framed to minimise the risk to the children from the father’s drinking and its consequences.
I do not consider that supervision is necessary if the children spend a weekend with their father and he does not drink before and while they are in his care.
The orders will provide for the children to spend alternate weekends with the father from after school Friday until school starts on Monday and also to spend time with him after school on each Wednesday until 7.30 pm.
During school holidays, those arrangements will continue except that the children will spend time with the father on each weekend of the school holidays.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 23 May 2022
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