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 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.
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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fontain & Pretre 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 5143 of 2018

Ms Fontain

Applicant

And

Mr Pretre

Respondent

REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

On Wednesday, 22 August 2018 I heard an application that had been filed by the mother urgently, served urgently and responded to urgently. The Application dealt with a range of issues including parenting; urgent spouse maintenance; property and injunctive relief. The Registry was sufficiently concerned that the father was seemingly holding the children – they are X born in 2014, now aged four and half years and Y born in 2016, now aged two and a half years – that the matter was listed before me urgently as a visiting Judge to this Registry.
When Mr Gould and Mr Othen, acting for the father and mother respectively, appeared before me, I indicated on the material then before me my preliminary view that supervision, either of the mother’s time as the father urged or the father’s time as the mother urged, did not seem on that evidence to be made out. The matter was stood down for a short period of time to see if the parties could reach any understanding. They could not. I also made it clear that at that time there was insufficient time and insufficient material to properly deal with the other urgent application the mother brought, namely for spouse maintenance.
Enquiries were made during the course of the morning as to the availability of a Family Consultant to provide an opportunity for the children to come to the Court and be observed by a Family Consultant, but more particularly for the parties to have an opportunity to speak to an expert. I indicated to the parties on the last occasion an appointment had been made for 4 September 2018. I also indicated that I would use my best endeavours to have the matter brought before a judicial officer of this Court as soon as possible after 4 September 2018 and allowing for a report to be prepared. It takes about a week. I am instructed that a listing before a Registrar, which is the practice here in Sydney, at 10.00am on 26 September 2018 has been made.
The reasons now delivered orally deal with the matters which were required to be dealt with considering this context. After, as I say, providing a preliminary view on the material as to whether supervision was appropriate at this stage, the competing proposals of the parties on an interim basis were the mother seeking to return to what was effectively the regime of three days a week between 9.00am to now 3.30pm, but no overnight time. The father’s position was an equal time arrangement in a configuration of nights approximating four nights, then three nights, then three nights, then four nights.
As Counsel that appeared on the last occasion were advised, and it is clear under settled law, interim hearings are truncated by nature. The approach on an interim hearing has been identified by the Full Court in Goode & Goode (2006) FLC 93-286, but also more recently in the decision of Banks & Banks (2015) FLC 93-637, the Full Court made it clear that in circumstances where in the absence of clear evidence, findings ought not normally be made on disputed facts. The Court should concentrate on those issues which are pressing and likely to enable the Court to at least make some orders in the interests of the children, even cautiously, for a holding pattern until the next court event.
The parties began cohabitation, but never married, in 2012. At the time, the father was 34 years of age and the mother 20 years of age. Two children of the relationship have been born, as earlier indicated. It seems not in dispute that since the time of cohabitation the mother has not worked outside the home, or at least since the birth of the children. The father says he works for the family business and has worked from home, he says, from November 2014 (paragraph 12) and increased his time working from home from January 2017. From the bar table it was suggested that the mother might disagree with this evidence. I know that because of the urgent way in which this matter was brought before the Court, the mother has not had the opportunity to respond to the very serious allegations the father made against the mother in respect of abuse of the children. She no doubt will wish to do so.
I must say that at this early stage of the proceedings it is hard to reconcile the father’s assertion of the mother’s continued neglect and abuse of these children (see in particular paragraph 16 of the father’s Affidavit filed 21 August 2018) where he deposes inter alia to the mother screaming at and hitting X with “such force” to cause “vomiting” and that these incidents “became a routine occurrence taking place between 6-7 times per day including [X] crying, cowering and vomiting daily” with him being present extensively, as he asserts (see paragraph 15), and apparently taking no action to protect these preschoolers from the daily abuse at the hands of the mother.
If the Court ultimately finds that these serious allegations are correct, then it raises serious concerns not only about the mother’s conduct, but about the father’s capacity to protect the children with his inaction. If the Court ultimately finds that those serious allegations are not correct or have been exaggerated, that again will say something about the father. Notwithstanding the Court’s preliminary expressed view against orders for supervision, the father’s proposal for equal time is also inconsistent with such grave abuse allegations as he raises.
The mother’s proposal is based more on her expressed fear, concern and view that:
a)she has been the children’s primary carer since their birth. This is a matter disputed by the father;
b)the children have not had overnight time away from her before 10 August 2018 and no extended time away from her; and
c)the father’s lack of action in facilitating time since 10 August 2018 with her (significantly, the father says, on the basis of X opposing time because of the alleged abuse) suggests the father is not child-focused.
These are all matters that could not be determined on an interim basis because they are contested and some other basis for all of the actions of the father since 10 August 2018 is offered by the father.
These issues, together with the father’s abuse allegations, noting that the mother – but not the father – had filed a Notice of Child Abuse or Risk of Family Violence form, cannot be determined on an interim basis without more collateral evidence, and that may be available, and then all evidence can be properly tested. It is at least curious that there is no suggestion that the Department, police or medical authorities have been engaged with this family in view of the extensive alleged abuse asserted.
The material raises a number of disputed facts, but what is clear is that it is in the best interests of these children, which is the paramount consideration, that both parents have frequent time with the children, and at this early stage recreating to a degree a routine which to some extent the parties had created for these children, noting however the father asserts not with his consent, post separation, and which will include X attending childcare on Wednesday and Thursday and Y attending childcare on Thursday. This is a preferred option which provides some stability to the children until further assessment, but with some modification.
I also note that when considering whether children should return to the mother, as I ordered to occur Wednesday after the hearing, the mother indicated it was her intention on the Thursday, notwithstanding the children not having been in her care since 10 August 2018, to place the children into childcare. I took that as an example of the mother’s desire to return to routine that the children knew about.

Discussion on the parenting dispute

Parental responsibility

The Family Law Act 1975 (“the Act”) makes clear and identifies that on an interim basis the Court may elect not to apply the statutory presumption or make an order for equal shared parental responsibility. In my view, the Affidavits of the parties taken at their highest would support a finding that the presumption is rebutted and/or not in the children’s best interests. I indicated to Counsel on the last occasion that I did not propose to make any order in respect to parental responsibility at an interim stage.
The conduct since 10 August 2018 when the father felt a need to retain the children and not facilitate any time between the children and the mother has caused parental communication (often manifest in text messages previously of some length and frequency, and many of which have different possible interpretations on the material already provided and tendered by the parties) to have now been taken over by exchanges between the solicitors.
I have real concerns whether, even if equal time or significant and substantial time orders were in the best interests of the children, such orders are reasonably sustainable and practicable. The filed Affidavits identify very hurtful remarks made, one against the other. Although the father says actions by his family to deregister the car the mother has used to transport the children is not an action by him, the effect on this mother and her parenting responsibilities has been significant. She has felt compelled to return to the home of her parents at Suburb C (both for emotional and financial support) whilst the father remains living in what was the family home alone.
At the same time, the mother seeks financial support, which the father asserts he is unable to provide, and that is a matter to be dealt with on another day. In my view, at this early stage of this litigation I am not satisfied that an equal time regime in the form proposed by the father is in the best interests of the children.
However, I am satisfied that the children should not be prevented, as the mother proposes, from having some overnight time with the father, although I accept that once further information is available to the Court, the orders I pronounce today may be varied by the Court if appropriate (or by agreement between the parents). I believe that any interim orders at this time must take into account the following factors:
a)The need to maintain the opportunity for the children to have a meaningful relationship with both parents, which will be of benefit to those children;
b)In circumstances where the Court cannot ignore the asserted risk to these children both parents raise against the other, and they are serious risks raised, regular time does allow some degree of monitoring to take place;
c)I infer each party has supportive extended family and the children will benefit from the natural, as it seems to have occurred in the past, opportunities to interact with extended family, grandparents and the like;
d)Both parents readily assert they are fully available to provide care and wish the current regime of day care to continue at this stage, as earlier set out; and
e)The sharing of care to some degree will cause expenses associated with the children to be shared until child support and spouse maintenance obligations are determined or clarified.
In my view, at this stage the children should spend more time with the mother than with the father. However, the father’s time should include at least weekly overnight time and some time when the children are not at childcare. For pre-schoolers this opportunity to spend time outside the childcare environment is an opportunity lost when the children reach school age. Neither parent should necessarily take some comfort or suffer disappointment from my decision at this early stage, as when further information is available (including any initial assessment by the Family Consultant arising from the consultation on 4 September 2018) variations to these orders might be indicated.
However, until any such court event, the orders I make adopt a routine that the children live with the father when not otherwise living with the mother as follows:
a)Each alternate weekend from 5.00pm Friday to 9.00am Monday commencing Friday, 31 August 2018. This will mean, of course, the children will be in the care of the father on 2 September 2018 which is Father’s Day;
b)Each alternate week from after childcare Thursday to 5.00pm Friday commencing Thursday, 6 September. This allows the father to collect both children from childcare on that Thursday, giving him an opportunity to engage with the children’s childcare providers, and, of course, allows the mother the full weekend to spend with the children;
c)Each Tuesday commencing Tuesday, 28 August 2018 from 9.00am to 5.00pm. This permits the children to spend time with the father when not at childcare once a week during the week at least; and
d)At all other times the children shall live with the mother, with that time being a mixture of mid-week time; weekend time; mostly organising the children to attend the current regime at childcare as she has since separation and the majority of nights in the mother’s care.
Changeovers which do not occur at childcare shall occur at the home of the mother. Her lack of transport means at this stage the father will need to do the majority of travel. No practical difficulties where the parents currently live about 15 minutes apart is anticipated.
As to other interim parenting orders sought by the parents I find:
a)because these proceedings return to the Court before Christmas I choose to make no orders in respect of a number of special days in the future at this stage;
b)as Mr Othen for the mother properly conceded, the basis for the Airport Watch List order in circumstances where these children have no Australian passports and the concerns the mother holds has little evidentiary basis yet placed before the Court, it is hard to justify such an order being made. At this stage I make no such order;
c)the frequency of time being shared under these interim orders between the parents and the age of the children is such at this stage, that in my view little benefit for the children arises from having prescribed telephone time spanning the physical visits. Telephone time can play a useful opportunity for children to engage with a parent, but because of the frequency of physical time it may not be of any real benefit at this stage. In saying that, I accept that the parents would like to speak to their children probably every day. However, that may be more a need for the parents than a need for the children. Sensibly the parents can without any orders facilitate and initiate the children speaking by telephone to the other parent if they feel the children will benefit from that short interaction when they are in their care. If the care arrangements that I have ordered today are varied and less regular time during a week with a parent then occurs, telephone time might need to be revisited;
d)at paragraphs 10, 11 and 12 of the mother’s amended Initiating Application the mother seeks some fairly common orders which seek to protect the children from hearing negative comments or be exposed to parental conflict. In slightly different terms I make such orders more as a statement of good parenting rather than because at this stage the evidence suggests the parents have been exposing the children to negative views or parental conflict; and
e)whilst both parents seek orders in slightly different terms requiring attendance at an accredited parenting course, more specifically the Uniting Keeping Contact program, I would prefer that the Family Consultant who the parents will see on 4 September 2018 consider making a recommendation to the Court about the specific program that is best suited to the assessed needs of these parents. That might be helpful to enable them to improve at least communication skills and to have a better appreciation of the challenges they will face if they hope to have an effective shared parenting arrangement (not necessarily equal time) into the future. On the next occasion if the parents do not voluntarily embrace any recommendation for attendance at such courses, the Court can consider making an order then.

Financial issues

The urgent listing of the Application by the mother, and to the father’s credit his preparation and filing of a Response, has left little opportunity or time to enable the mother to properly assess whether the father has, as her former partner, the capacity to pay spouse maintenance under the Act. If in fact he has the capacity, it is difficult to assess at this stage what the level of his capacity to pay is. Counsel at the Bar Table on Wednesday indicated that the parties were going to undertake some mutual discovery. Both parties are competently represented and they understand that when the matter comes before the Court on the next occasion, or soon thereafter as a judicial duty listing is provided, they will need to do better than to merely make the claim or oppose it. They will need to at least provide some evidence about these matters.
I note that the father’s filed Financial Statement asserts a weekly income of $2,611 a week and weekly expenses of $5,035 per week. Furthermore, the father says that he was involved in a car accident on 21 March 2018 (which does not seem to be disputed as the mother was also involved) and as a result is currently unable to work. His estimate of income is on the basis of an asserted gross weekly income of $1,910 “when he recommences employment”. As I understand, he works in the family business and how his income is even assessed or paid is unclear.
On the current material the mother’s financial circumstances depose to no income other than government benefits, such that she says she is currently unable to adequately support herself. From the bar table the father’s Counsel, Mr Gould, sought to contend that depending on care arrangements for the children the mother should be able to return to her earlier vocation. This issue and the father’s available income and financial resources are contentious, and I explained to both parties that the matter could not be properly assessed on the first date before the Court last Wednesday.
I accept, however, the mother’s claim appears urgent, and both parties accept that before the next date before the Court, and with both, as I say, parties competently represented, mutual discovery should be conducted so that the Court has sufficient evidence on the next occasion to assess the mother’s capacity to support herself and the father’s capacity to pay spouse maintenance. An examination of this financial dispute will enable the Court to be in a position to consider the spouse maintenance issue more fully, as well as the mother’s claim for interim costs order of $20,000 and her further case management issues relating to valuations, etc.
I put to Mr Othen for the mother that such further clarification of the father’s legal and contingent property interests may ultimately lay a foundation to consider the injunctive relief articulated at paragraph 22 of the amended Initiating Application of the mother. It may be that because of interests held by the father with other family members or in corporate entities, some of the injunctive relief orders proposed could affect the interests of third parties who would need to have notice of the Application before the Court could properly make any orders affecting their interest.
Time for the urgent parenting application (which included an application by the mother for a Recovery Order) did not allow such matters to be properly ventilated at this stage. Again, a matter for another day to be considered within the parameters of the well-known and settled authority about injunctive relief in such circumstances.
For the reasons given, I find that the interim orders that appear at the commencement of these Reasons are in the best interests of the children.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 24 August 2018.

Associate:

Date: 4 September 2018