Fontain and Pretre - [2018] FamCA 675

FAMILY COURT OF AUSTRALIA

FONTAIN & PRETRE

[2018] FamCA 675

FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – contested residence – where it is contested that the mother has been the primary carer of the children – where the father has retained the children – where the father has not facilitated any time or communication with the mother – where the father makes allegations of neglect and abuse against the mother – where the father proposes an equal time arrangement – where the mother proposes there be no overnight time with the father ‑ where the Court cannot test the evidence at an interim hearing – interim orders made in the best interests of the children.

Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 93-286
Banks & Banks (2015) FLC 93-637

APPLICANT:

Ms Fontain

RESPONDENT:

Mr Pretre

FILE NUMBER:

SYC

5143

2018

DATE DELIVERED:

24 August 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Baumann J

HEARING DATE:

22 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr C Othen

SOLICITOR FOR THE APPLICANT:

Southern Waters Legal

COUNSEL FOR THE RESPONDENT:

Mr G Gould

SOLICITOR FOR THE RESPONDENT:

New South Lawyers

Orders

That the children, X born … 2014 and Y born … 2016 (“the children”) shall live with the mother and father, unless otherwise agreed, as follows:
(a) With the father:
(i)each Tuesday commencing 28 August 2018 between 9.00am and 5.00pm;
(ii)each alternate weekend from 5.00pm Friday to 9.00am Monday commencing 31 August 2018; and
(iii)each alternate Thursday commencing 6 September 2018 from after daycare on Thursday until 5.00pm Friday.
(b) With the mother at all other times.
That all changeovers not taking place under these Orders at the childcare facility for the children, shall occur at the home of the mother.
That both parents are restrained and an injunction issues restraining the parents from:
(a)physically disciplining the children;
(b)making any denigrating or hurtful comments about the other parent, the other parent’s family or lifestyle with or in the presence of the children; and
(c)discussing these proceedings and other issues causing adult conflict, with or in the presence of the children.

Child Inclusive Conference

That the parents and the children shall attend an appointment with Family Consultant, Mr B or such other Family Consultant as nominated by the Senior Family Consultant of the Family Court, Sydney at 9.00am on 4 September 2018 at the Family Court of Australia, Level 2, Lionel Bowen Building, 97-99 Goulburn Street, Sydney.
That pursuant to s.11 of the Family Law Act 1975, the Family Consultant shall provide an advice to the Court and the parties that may include:
(a)identification of the issues for the children;
(b)a consideration of the relevant factors contained in s.60CC of the Act and an appropriate parenting plan for the children until there can be further investigations into the matter; and
(c)such programs as may assist the parents establish a better functioning co-parenting relationship and more positive and effective communication or that might assist…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fontain and Pretre

Details

AGLC: Fontain and Pretre [2018] FamCA 675
Case: [2018] FamCA 675
Decision Date: 24 August 2018

CaseChat Overview and Summary

In the Family Court of Australia, Justice Baumann made orders concerning the parenting arrangements for two children, X and Y. The proceedings involved the mother and father of the children, who were seeking to establish a parenting plan and address issues of parental conflict.

The court was required to determine the living arrangements for the children, including the specific times they would spend with each parent. Additionally, the court needed to consider orders to restrain certain behaviours between the parents, particularly in relation to the children, and to facilitate a child-inclusive conference to obtain expert advice on the children's best interests and the parents' co-parenting relationship.

Justice Baumann ordered that the children would live with the mother and father on an alternating basis, with specific days and weekends allocated to each parent. The court also issued an injunction restraining both parents from physically disciplining the children, making denigrating comments about the other parent in the children's presence, or discussing adult conflict with or in front of the children. Furthermore, the parents and children were ordered to attend an appointment with a Family Consultant, who was directed to provide advice to the court and parties regarding the children's issues, relevant factors under s 60CC of the *Family Law Act 1975*, and potential programs to improve the parents' co-parenting relationship and communication. The matter was adjourned for further directions before a Registrar.

Orders

Orders of the court

That the children, X born … 2014 and Y born … 2016 (“the children”) shall live with the mother and father, unless otherwise agreed, as follows:

(a) With the father:

(i) each Tuesday commencing 28 August 2018 between 9.00am and 5.00pm;

(ii) each alternate weekend from 5.00pm Friday to 9.00am Monday commencing 31 August 2018; and

(iii) each alternate Thursday commencing 6 September 2018 from after daycare on Thursday until 5.00pm Friday.

(b) With the mother at all other times.

That all changeovers not taking place under these Orders at the childcare facility for the children, shall occur at the home of the mother.

That both parents are restrained and an injunction issues restraining the parents from:

(a) physically disciplining the children;

(b) making any denigrating or hurtful comments about the other parent, the other parent’s family or lifestyle with or in the presence of the children; and

Child Inclusive Conference

That the parents and the children shall attend an appointment with Family Consultant, Mr B or such other Family Consultant as nominated by the Senior Family Consultant of the Family Court, Sydney at 9.00am on 4 September 2018 at the Family Court of Australia, Level 2, Lionel Bowen Building, 97-99 Goulburn Street, Sydney.

That pursuant to s.11 of the Family Law Act 1975, the Family Consultant shall provide an advice to the Court and the parties that may include:

(a) identification of the issues for the children;

(b) a consideration of the relevant factors contained in s.60CC of the Act and an appropriate parenting plan for the children until there can be further investigations into the matter; and

(c) such programs as may assist the parents establish a better functioning co-parenting relationship and more positive and effective communication or that might assist them in the development of their parenting skills.

That the Family Consultant is to prepare a brief written report.

That the Family Consultant shall have leave to inspect any subpoenaed documents.

That the parents shall ensure the attendance of the children upon the Family Consultant if considered appropriate by the Family Consultant.

That the Family Consultant and the parties shall have liberty to approach the Associate of the Judge to list the matter for any further directions and for that mention the Family Consultant shall have leave to appear via the telephone.

10.

That all applications be adjourned before a Registrar for Directions at 10.00am on 26 September 2018 in the Family Court of Australia at Sydney.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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