Muscat & Muscat

[2021] FamCA 209

FAMILY COURT OF AUSTRALIA

Muscat & Muscat [2021] FamCA 209

File number(s):	SYC 7045 of 2019
Judgment of:	REES J
Date of judgment:	16 April 2021
Catchwords:	FAMILY LAW – INTERIM PARENTING AND PROPERTY – Application by the husband to increase his unsupervised time with the children – Application opposed by the wife – Where the parties agree to sell the former matrimonial home – Where the parties estimate an expenditure of approximately $687,000 toward the Family Court proceedings - Orders made for the parties to attend a Family Dispute Resolution Conference with a Family Consultant and Registrar.
Number of paragraphs:	24
Date of hearing:	15 April 2021
Place:	Sydney
Counsel for the Applicant:	Mr Campton SC
Solicitor for the Applicant:	Lawfirm Pty Ltd
Counsel for the Respondent:	Mr Lloyd SC
Solicitor for the Respondent:	Farrar Gesini Dunn Sydney
Solicitor for the Independent Children's Lawyer:	Mr Harb, Harb Lawyers

ORDERS

SYC 7045 of 2019

BETWEEN:

MR MUSCAT

Applicant

AND:

MS MUSCAT

Respondent

HARB LAWYERS

Independent Children’s Lawyer

ORDER MADE BY:	REES J
DATE OF ORDER:	16 APRIL 2021

THE COURT ORDERS:

1.That pursuant to Section 13C(1)(b) of the Family Law Act 1975 (Cth), the parties and their legal representatives (if any) shall attend a confidential Family Dispute Resolution Conference between 9:00am and 4.00pm on 10 June 2021 with a Registrar (Family Dispute Resolution Practitioner) and Family Counsellor of the Family Court of Australia.

2.That the parties and their legal representatives (if any) shall attend Part 1 of the confidential Family Dispute Resolution Conference with a Registrar (Family Dispute Resolution Practitioner) or Family Counsellor on 2 June 2021 at the following times:

(a)the Applicant at 2:15pm;

(b)the Respondent at 3:00pm; and

(c)the Independent Children's Lawyer's appearance shall be excused from sessions.

3.That Part 1 of the confidential Family Dispute Resolution Conference shall proceed by telephone and each party must, within 7 days of today's date, notify the court of their best contact telephone number by email to ...

4.That the parties shall each:

(a)Complete and forward to the Registrar and each other party a completed Parenting Questionnaire by no later than 4.00pm on 26 May 2021 via email to ... ; and

(b)Comply with any other order or direction made by the Registrar/Judge necessary to facilitate the Family Dispute Resolution Conference.

5.That not later than 4.00 pm on 3 June 2021 the lawyer for each party must give the party for whom they act a written notice of:

(a)The party's actual costs, both paid and owing, up to and including the Family Dispute Resolution Conference; and

(b)The estimated future costs of the party up to and including each future court event, including trial; and

(c)Any expenses paid or payable to an expert witness or, if those expenses are not known, an estimate of the expenses.

6.That the parties shall otherwise comply with any other order or direction made by the Registrar/Judge necessary to facilitate the Family Dispute Resolution Conference.

7.That in the event of non-attendance by either party at Part 1 of the Conference (on 2 June 2021 pursuant to Order 2 herein), the Registrar may vacate the Family Dispute Resolution Conference on 10 June 2021.

8.That the matter is otherwise adjourned before a Registrar on a date to be advised that is not before 10 July 2021.

IT IS NOTED:

9.That for the purposes of the Family Dispute Resolution Conference, the parties are referred to s 131 of the Evidence Act 1995 (Cth) and ss 10J and 10H of the Family Law Act 1975 (Cth) and to the Court's Family Dispute Resolution Fact Sheet.

10.That the Parenting Questionnaire is a confidential without prejudice document prepared for the purpose of the Family Dispute Resolution Conference only. The Parenting Questionnaire is not to be filed nor kept with the Court file after the conclusion of the conference.

11.That Part 1 of the Family Dispute Resolution Conference referred to in Orders 2(a) and 2(b) above is the first part of the Conference and is confidential. The other party will not be in attendance.

12.That the Family Dispute Resolution Conference is an opportunity for the parties to make a genuine effort to resolve their parenting dispute in a confidential, child focussed setting. The parties are to be resolution focussed and respectful during negotiations, and to be mindful of the financial and emotional costs associated with prolonged litigation.

13.That in the event the parties reach agreement, either on an interim or final basis, the Registrar may make orders and the next listing may be vacated.

IT IS FURTHER ORDERED:

14.That the solicitors for each of the wife and the husband provide a copy of these reasons to the parents of the wife and the parents of the husband by post forthwith addressed to those persons’ postal or residential address and by email.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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).

REASONS FOR JUDGMENT

Rees J:

1. Proceedings between Mr Muscat (“the husband”) and Ms Muscat (“the wife”) in relation to the parenting of their two children aged seven years and four years, and in relation to the disposition of their property are on foot.

2. On 1 June 2020, the Senior Registrar heard and determined the husband’s application in relation to interim parenting orders. The husband sought to review the orders of the Senior Registrar and that application was determined by me, as a hearing de novo, by the delivery of reasons and making of orders on 17 July 2020.

3. In those proceedings, concerns were raised by the wife about the husband’s mental state and about his drug use. The husband had been charged and convicted of the offences of assaulting the wife and the oldest child.

4. The orders made on 17 July 2020 provided for the husband’s time with the children to be supervised by the paternal grandmother for one day each week.

5. An Independent Children’s Lawyer (“ICL”) has been appointed for the children and a single expert psychiatrist, Dr B, has prepared a report which was released to the parties in October 2020.

6. Since the receipt of the report of Dr B, the parents, with the assistance of the ICL, have agreed to vary the orders made on 17 July 2020 and on 14 December 2020, orders were made by consent that have the effect that the husband has unsupervised time with the children each Saturday between 9.30 am and 5:00 pm and each Wednesday from after school until 7.30 pm. They were also able to agree on the children spending unsupervised, day time periods with the husband in school holidays.

7. On 3 March 2021, by consent, orders were made, inter alia, in the following terms:

   6.That in the event the parties are unable to resolve parenting matters by 15 April 2021 on a final basis the parties agree to engage in mediation within three (3) months.

   7.For the purpose of order 6, the mother shall nominate three mediators in writing to the father.

   8.Within 7 days of the mother’s compliance with Order 7, the father nominate one mediator from the mediators nominated by the Mother in accordance with Order 4.

   9.Within 14 days of the father’s nomination in accordance with order 8, the parties shall jointly write to the mediator nominated by the father in accordance with Order 8 to attend mediation prior to 31 July 2021.

   10.At least seven days before the mediation the Husband and the Wife must deliver to the mediator a collaboratively prepared single balance sheet setting out all assets, liabilities and financial resources which each party asserts are relevant to the determination of this matter.

   11.At least seven days before the mediation each party must send to the other and to the mediator copies of:

   11.1.Mediation Summary of Argument, being a document setting out that party’s assertions as to:

   11.1.1.The percentage share of the net asset pool to which they are entitled;

   11.1.2.The respective contributions of each party to the net asset pool (expressed as percentages);

   11.1.3.Any adjustment to be made pursuant to section 75(2) of the Family Law Act 1975 (Cth) (expressed as a percentage); and

   11.1.4.The facts alleged by each party in support of each of the foregoing.

   12.The matter be adjourned to a date advised by the court not before 15 August 2021.  

8. When the matter came before me on 15 April 2021, no steps had been put in train to comply with the orders made on 3 March 2021 and both parties sought to agitate further issues. Relevantly, the husband sought to extend the time he spends with the children to include overnight time. That application was opposed by the wife on the basis, in part, that the one hair follicle test result of the husband which had been produced, indicated the presence of illicit substances.

9. I indicated to the parties that I did not propose to hear the husband’s application to vary the agreed parenting arrangements in circumstances where they had agreed to mediation but I was prepared to arrange for them to attend mediation arranged by the Court with a Family Consultant and a Registrar. Arrangements have been put in place for that mediation to occur on 10 June 2021.

10. These proceedings involve the parenting of two children where there is no dispute that they will live primarily with their mother. The parenting dispute relates to the amount of time the children will spend with the husband.

11. At the present time, they are spending time with him twice each week.

12. As I stated in the reasons delivered on 17 July 2020, the Court is required to make orders which accommodate the benefit to the children of having a meaningful relationship with each of their parents. That does not mandate that the Court will be required to entertain serial applications by non-resident parents, presumably under the misapprehension that “meaningful” is to be equated with “optimal”, who assume that their time with the children will be increased on each occasion they make an application.

13. An arrangement whereby these children spend time with their father twice each week is sufficient to ensure that the children’s relationship with their father is significant, important and of consequence. Whether the time the children spend with the husband is to change will be a matter for the substantive hearing if the parents are unable to reach an agreement with the assistance of the Court’s Family Consultant and Registrar.

14. In the course of the proceedings before me on 15 April 2021, the husband and the wife have agreed to sell the former matrimonial home where the wife and the children live. It appears to be agreed that they cannot afford to pay the mortgage in order to retain the residence for the children.

15. It is agreed that the equity in the property is about $150,000. There are no other significant assets. The wife has a modest superannuation interest and the husband a minimal one.

16. Against those parlous financial circumstances should be set their respective costs disclosures.

17. The wife’s actual, paid costs to date are $180,140. Her solicitors estimate that her total costs of the proceedings will be $377,166.

18. The husband’s paid costs to date are $152,618. His solicitors estimate that his total costs of the proceedings will be $310,434.

19. These parties contemplate spending in excess of $687,000 on this dispute about a small sum of money and how many days each fortnight the children spend with their father.

20. Both the wife and the husband have borrowed the funds used to pay costs from their respective parents.

21. Both the husband and the wife appeared before me represented by senior counsel.

22. The evidence does not permit me to speculate upon their respective motivations but it is trite to say that their resources would be better applied to the welfare of their children than to this exercise, apparently, of retribution, being conducted not at their own expense but at the expense of their parents.

23. In the event that the matter is not resolved in the mediation, it should be referred to a registrar for further directions.

24. It is appropriate in the circumstances of this case that a copy of these reasons should be provided to the parents of each of the wife and the husband.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees.

Associate:

Dated:       16 April 2021