COURT GRANTS FATHER’S APPLICATION ON THE BASIS OF MEANINGFUL RELATIONSHIP BETWEEN THE FATHER AND THE CHILDREN
MUSCAT & MUSCAT
FAMILY COURT OF AUSTRALIA
[2020] FamCA 572
FACTS:
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). The parents separated on 26 September 2019. After separation, the children remained living with the mother. However, the children want to spend time with the father.
The parties filed competing #Parenting applications that were heard and orders were made by the Senior Registrar. The father seeks for the review of the orders made by the Senior Registrar for time with the children. The father seeks graduated orders for time with the children, supervised by the paternal grandmother, for a further four weeks and then to unsupervised time. He also seeks video call access on Tuesday and Thursday and specifies that the mother not be present in the room during the calls. On the other hand, the mother seeks to maintain the arrangements put in place by the Senior Registrar.
In the proceedings, the parties allege that the other have 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. Further the mother raises the issue of the father’s mental health in the context of an asserted suicide threat. However, there are a number of facts that are not in dispute. The father was charged and was found guilty of assaulting the mother and of assaulting X. He was fined and sentenced to perform community service.
ISSUE:
Whether or not the Court should grant the father’s application even though there were allegations of family violence, mental health, and use of illicit drugs.
HELD:
The primary considerations in determining the appropriate parenting arrangements for the children are the benefit to the child of having a meaningful relationship with both of the child's parents; and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
It was held in a case that when considering the primary considerations and the application of the objects 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.[1]
The Court is 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. Thus, the Court considers 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. In addition, the children will have video call access to the father on Tuesdays and Thursdays at 6.30pm.
“...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.”[2]
[1] Brown J, Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518.
[2] Kay J, Godfrey & Sanders [2007] FamCA 102; [2007] 208 FLR 287.