Muscat and Muscat

[2020] FamCA 572

FAMILY COURT OF AUSTRALIA

MUSCAT & MUSCAT [2020] FamCA 572

FAMILY LAW – PARENTING – Review of the decision of a Senior Registrar – Where both parents allege a risk of harm in the other’s care – Where the father was convicted of assaulting the mother and one of the children – Where the children want to spend time with the father – Where the children will spend every Saturday with the father – Where this time will be supervised by the paternal grandmother.

Family Law Act 1975 (Cth) s 4, 60CC (2)

Godfrey & Sanders [2007] 208 FLR 287

McCall & Clarke (2009) FLC 93-405

Moose & Moose (2008) FLC 93-375

APPLICANT: Mr Muscat

RESPONDENT: Ms Muscat

INDEPENDENT CHILDREN’S LAWYER: Harb Lawyers

FILE NUMBER: SYC 7045 of 2019

DATE DELIVERED: 17 July 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 9 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Gillies SC

SOLICITOR FOR THE APPLICANT: Lawfirm Pty Ltd

COUNSEL FOR THE RESPONDENT: Mr O’Ryan QC

SOLICITOR FOR THE RESPONDENT: Farrar Gesini Dunn Sydney

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Cairns

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Harb Lawyers

Orders

IT IS ORDERED PENDING FURTHER ORDER

1. That the children X born … 2013 and Y born … 2017 live with the mother.

2. That the children spend time with the father each Saturday from 9.30am until 5pm.

3. That the mother deliver the children to the residence of the paternal grandparents at the commencement of the time in Order 2 and collect them from that residence at the conclusion of the time.

4. That the time that the children spend with the father be supervised by the paternal grandmother.

5. That the children have video call access with the father each Tuesday and Thursday from 6.30pm until 7pm.

6. 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 of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Muscat & Muscat has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7045 of 2019

Mr Muscat

Applicant

And

Ms Muscat

Respondent

REASONS FOR JUDGMENT

1. Mr Muscat (“the father”) and Ms Muscat (“the mother”) are the parents of X who was born in 2013 and Y who was born in 2017 (“the children”).

2. The parents separated on 26 September 2019. After separation, the children remained living with the mother.

3. Competing parenting applications were heard by the Senior Registrar on 1 June 2020 and orders were made by the Senior Registrar that provided for the children to live with the mother and for them to spend time with the father under professional supervision each Saturday from 9.30am until 1.30pm. The orders also provided for the father to video call the children on Tuesdays from 6.30pm.

4. The orders provided for both parents to undergo hair follicle testing for illicit substances and gave leave for each party and the Independent Children’s Lawyer (“ICL”) to relist the matter upon a report of a Single Expert becoming available.

5. The father now seeks to review the orders for time with the children and the order in relation to relisting upon the receipt of a report of a single expert.

6. Thus the matter proceeds before me as a hearing de novo.

7. In the course of the hearing, the parties agreed that Dr B, a child and family psychiatrist, be appointed as a single expert to prepare a report.

8. The father seeks graduated orders for time with the children, commencing with a full day on Saturday supervised by the paternal grandmother for four Saturdays, moving to alternate weekends from after school Friday until Sunday at 6pm, supervised by the paternal grandmother, for a further four weeks and then to unsupervised time each alternate weekend and each Wednesday overnight and half of all school holidays. He also seeks video call access on Tuesday and Thursday and specifies that the mother not be present in the room during the calls.

9. The father does not concede the necessity for supervision but the paternal grandmother has sworn an affidavit in which she sets out her willingness to supervise.

10. The mother seeks to maintain the arrangements put in place by the Senior Registrar.

11. The dominant issue in these proceedings is family violence.

12. Each of the parents alleges that the other has been violent. The father also alleges that the mother has inappropriately disciplined the children. The mother alleges that the father uses or has used illicit drugs.

13. Further the mother raises the issue of the father’s mental health in the context of an asserted suicide threat.

14. These are interim proceedings and, where facts are disputed, it is not possible to make findings.

15. However, there are a number of facts that are not in dispute.

16. In September 2019, the father was charged with common assault of the mother and X. Those charges were heard in December 2019.

17. In December 2019, the father was found guilty of assaulting the mother and of assaulting X. He was fined and sentenced to perform community service. The judgment of the Local Court is not in evidence. Thus the precise findings of the Local Court are not known. On the same day, an Apprehended Domestic Violence Order (“ADVO”) was made against the father, for a period of two years, for the protection of the mother and the children.

18. The father in his affidavit sworn 30 April 2020 deposed:

    I appreciate that I have been convicted but deny the substances of the facts and circumstances of the Conviction that portrays me as a perpetrator or a risk of harm.  

ALLEGATIONS OF DRUG USE

1. The mother asserts that the father used marijuana throughout the relationship. The father asserts, but the mother denies, that she also used marijuana and that they smoked it together.

2. The mother asserts, and the father does not deny, that she found marijuana and implements for its use in the house after the father left.

3. However, it would appear that the mother, knowing that the father was smoking marijuana, did not raise it as an issue whilst they lived together and the records of the child care centre attended by Y demonstrate that the father regularly took Y to the centre in the mornings and collected her in the evenings. I infer that the mother did not consider that his use of marijuana then was any impediment to his caring for the children.

4. The current orders provide for the father to have hair follicle testing and he has also consented to the ICL’s request that he have urinalysis testing. The only test result in evidence does not indicate the presence of marijuana.

5. I do not consider the father’s use of marijuana to be an issue which would require professional supervision.

THE FATHER’S MENTAL HEALTH

1. There is a dispute about what occurred on … October 2019. The parties had separated when the father left the home after the police involvement on 26 September 2019.

2. The mother asserts that on … October 2019 she received a phone call from the paternal grandmother asking her if she had heard from the father. Later that day the paternal grandmother texted the mother saying “Have you heard from [the father] at all still no word for all of us?”

3. Still later the mother was contacted by the police asking if she knew the locations of any extreme sports sites known to the father.

4. The paternal grandmother in her affidavit sworn 29 May 2020 denies the conversations between her and the mother occurred as the mother deposed. She deposed:

   On or about 13 October 2019 [sic] I made a police report after not being able to contact [the father] for some time. I had spoken to him the evening before and he advised me he was going to do an extreme sport activity. I couldn’t reach him the following day as his phone was switched off.

   As a mother, I then became very worried as he was alone and reported him missing.

5. There is no evidence from the paternal grandfather.

6. The father denies that he was suicidal on … October 2019 but deposes that he has suffered from depression and been prescribed anti-depressants since 2017.

7. The father deposed that he “really just wanted to be alone” and that he booked into a hotel. He deposed “I don’t know why they were concerned”.

8. As a result of the reports made by the paternal grandmother the police located the father who was asleep in his hotel room in the early hours of the morning.

9. Tendered in the mother’s case was a document titled “Request by Ambulance Officer for Assessment of Mentally Ill or Mentally Disturbed Person” completed on … October 2019.

10. That document records:

    ·[Patient] called father @ 2040 …/10/19 stating “I just want to talk to my girls, say goodbye then I’m going over”. [Patient] was standing on a cliff @ time of call (NSW PF triangulation). Paramedics spoke to [patient’s] father.

    ·[Patient] appears withdrawn, w/depressive mood, quiet voice + evasive question answers.

    ·[Patient] thought pattern sequential + reactive.

    ·Paramedic hold serious concern for [patient] welfare tonight.

11. The father was taken to C Hospital where he denied any suicidal intention and he was released the next day.

12. The paternal grandmother gave no evidence in her affidavit about the matters reported by her husband to the police which led the police to be concerned.

13. The incident on … October 2019 is a matter to be explored in due course at trial and will no doubt be examined by Dr B.

14. It is, however, a matter of concern that the father blames the mother for bringing his absence to the attention of the police when clearly it was his own parents who were responsible. The father deposed, “I consider this allegation and [the mother’s] report to the police to be constructed by [the mother] for her benefit in these proceedings”.

15. Until such time as that issue can be explored, the incident raises concerns about the children’s safety in the father’s care such that supervision of their time with him should be considered.

FAMILY VIOLENCE

1. Each parent alleges that the other has been violent. Each denies the allegations of the other.

2. Neither alleges a pattern of violence by the other in relation to third parties. It would appear that their aggressions, whatever they may ultimately be found to be, are reserved for each other.

3. Unfortunately, those incidents of aggression have involved the children.

4. Whatever may have occurred on 26 September 2019, the evidence was sufficient for the father to be convicted of assaulting X.

5. On the mother’s version, which is disputed, the father and the mother argued about money; the father grabbed the mother by the hair and by the throat and pushed her. X, standing at the top of the stairs, intervened saying “stop it dad” and the father pushed X causing her to fall but she regained her balance. The incident could have had serious consequences had X fallen down the stairs.

6. I accept the evidence of the supervisors from D Services that the children miss their father and want to spend time with him.

7. However, I also accept that the matters to which I have referred in these reasons suggest that the children’s time with their father should be supervised to allay concerns about his behaviour in their presence.

8. I do not, however, consider that professional supervision is required.

9. I reject the submission on behalf of the father that he cannot afford to pay for professional supervision.

10. The father has had two overseas holidays since the parties separated, he is able to rent his own premises and, most relevantly, he has been represented, both before the Senior Registrar and before me, by senior counsel.

11. I accept that professional supervision places constraints on the interaction between the children and the parent and should only be required when necessary.

12. In the present case, the parties both agree that the children have a close and loving relationship with their paternal grandmother and the mother raises no concerns about the care which the paternal grandmother has provided for the children in the past.

13. The paternal grandmother has sworn an affidavit in which she sets out her understanding of the role and duties of a supervisor.

14. On behalf of the father it was submitted that limited, supervised time with the children will not allow their present relationship with him to be maintained.

15. I do not accept that submission.

16. The supervisors’ reports demonstrate a close and loving relationship between the children and the father.

17. The primary considerations in determining the appropriate parenting arrangements for the children are:

    (a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

    (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

18. The question of what is meant by the term “meaningful relationship” was considered by the Full Court in the decision of McCall & Clarke (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)).  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, 6^th 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.   

19. 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.

20. Thus I am required to consider the importance of the children having a relationship with their father that is significant, important and of consequence, while balancing that requirement against the need to protect the children, one of whom has been the victim of an assault resulting in the father’s being convicted of a criminal charge.

21. I consider that an arrangement whereby the children spend one day each week in the care of their father, supervised by the paternal grandmother, achieves that balance.

22. In addition, the children will have video call access to the father on Tuesdays and Thursdays at 6.30pm.

23. The parties have agreed with a number of other orders with the assistance of the ICL and those orders will be made by consent.

24. There was no review of a number of orders made by the Senior Registrar on 1 June 2020 and Orders 3 and 4 remain operative. I have inferred, since the parties have now agreed on the appointment of a Single Expert, that the father has withdrawn his objection to Order 5.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 17 July 2020.

Associate: 

Date:  17/07/2020