Family Court: definition of “meaningful relationship”

The Full Court of the Family Court has now defined what “meaningful relationship” means in s.60CC(2) of the Family Law Act, taking the view that generally a prospective view should be adopted.

It did so in the recent case of McCall and Clark, which concerned whether a child should continue to live in Dubai, or move back to Australia. I have set the discussion by the court below, with the key phrase in bold:

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, 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] HCA
53; (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]
FamCA 520; (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.

Kay J sitting in the appellate jurisdiction of the Court as a single judge in
Godfrey & Sanders (2007)
FamCA 102 (an appeal involving an application by a mother to relocate)
agreed with Dessau J’s exposition in M & S (formerly E) (2007)
FLC 93-313 of the effect of the amending Act and said at paragraph 33:

The Act sets out in s 60CC several matters for the Court to consider
in
determining what is in the child’s best interests but does not seek to
mandate
that any one or other matter becomes determinative in any particular
case. For
the purposes of this case the legislation requires that there be a
primary
consideration given to the benefit of the child of having a
meaningful
relationship with both of the child’s parents but it does not
purport to
prescribe how that meaningful relationship is best promoted in
the circumstances
of any one case.

and later at paragraph 36 said:

It seems to me that the final conclusion reached by the Federal
Magistrate that
the proposed relocation would jeopardise the relationship
between the children
and their father to an unacceptable extent was not at
all consistent with the
evidence that was before the Federal Magistrate.
Even if the move results in a
diminution of quality of the relationship,
what the legislation aspires to
promote is a meaningful relationship, not an
optimal relationship.

Bennett J discussed the terminology in G
& C [2006]
FamCA 994 and said the enquiry was a “prospective” one which requires a
court to evaluate the extent to which a meaningful or significant relationship
with both parents is going to be of advantage a child.

It appears to us that there are three possible interpretations of
s 60CC(2)(a):

(a) one interpretation is that the legislation requires a court
to consider the benefit to the child of having a meaningful relationship with
both of the child’s parents by examination of evidence of the nature of the
child’s relationship at the date of the hearing, to make findings based on that
evidence, which findings will be reflected in the orders ultimately made (“the
present relationship approach”);

(b) a second interpretation is that the legislature intended that
a court should assume that there is a benefit to all children in having a
meaningful relationship with both of their parents (“the presumption approach”);
and

(c) the third interpretation is that the court should consider
and weigh the evidence at the date of the hearing and determine how, if it is in
a child’s best interests, orders can be framed to ensure the particular child
has a meaningful relationship with both parents (“the prospective approach”).

We conclude that the preferred interpretation of benefit to a
child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach”
although, depending upon factual circumstances, the present relationship
approach may also be relevant. We note however that s 60CC(3)(b)
requires a court to explore existing relationships between a child and his or
her parents and other persons, including grandparents. If the
interpretation we have set out in (a) above were exclusively applied, that
interpretation would limit a court making appropriate orders in circumstances
where a significant relationship had not been established between a child and a
parent at the date of trial.
We reject the interpretation in
sub-paragraph (b). In our view if the legislature intended to elevate the
benefit to a child of a meaningful relationship to a presumption it would have
said so in clear and unambiguous language.

In coming to our conclusions we accept as appropriate the interpretation
of “meaningful relationship” set out by Brown J in Mazsorski. Consistently with
our conclusions we also agree with the reasoning of Bennett J in G & C.

In reaching these conclusions, we also consider the legislation
requires a court to focus on the benefit to the child of a meaningful or
significant relationship. No doubt in the majority of cases there will
be a positive benefit to a child of having a significant relationship with both
parents, but there will also be some cases where there will be no positive
benefit to be derived by a child by a court attempting to craft orders to foster
a relationship with one parent if this would not be in the child’s best
interests.