FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fontain & Pretre (No 2) [2022] FedCFamC1F 200
File number(s): SYC 5143 of 2018 Judgment of: ALTOBELLI J Date of judgment: 31 March 2022 Catchwords: FAMILY LAW – PARENTING – Assessment of Risk – Where the father asserts the mother poses a risk of harm in circumstances where the mother’s partner was found to engage in the grooming of a young person – Where the mother asserts the father poses a risk of harm due to a lack of parenting capability and perpetration of family violence – Where the best interests of the children is assessed as to which parent poses the least risk of harm – Risk of harm is exacerbated where one child is diagnosed with a number of developmental disabilities hindering their self-protection capability – Finding that the mother’s risk of harm can be isolated to her partner and can be managed by the making of protective orders – Finding that the father poses as a risk of harm due to lack of parenting capability thus requiring supervision to support him – Orders made for the children to live with the mother and spend supervised time with the father – Protective orders made for the mother to undergo therapy and education and restraining her from exposing the children to her partner – Orders made extending the Independent Children’s Lawyer’s appointment for 12 months as a further protective measure. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA Cases cited: MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Oberlin & Infeld (2021) 63 Fam LR 88; [2021] FamCAFC 66
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
Division: Division 1 First Instance Number of paragraphs: 131 Date of hearing: 1–4 November 2021 Place: Sydney Counsel for the Applicant: Mr Lloyd SC Solicitor for the Applicant: Jordan Djundja Lawyers Counsel for the Respondent: Ms Friedlander Solicitor for the Respondent: Sharah & Associates Solicitors And Conveyancers Counsel for the Independent Children's Lawyer: Ms Shea Solicitor for the Independent Children's Lawyer: Crawford Ryan Lawyers Pty Ltd ORDERS
SYC 5143 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS FONTAIN
Applicant
AND: MR PRETRE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
31 MARCH 2022
THE COURT ORDERS THAT:
1.The mother have sole parental responsibility for the children, X, born in 2014 and Y, born in 2016 (“the children”).
2.The children live with the mother, conditional upon her compliance with Orders 8, 9 and 10.
3.The children spend time with the father for three hours:
(a)On each alternate Saturday or Sunday;
(b)On 25 December each year; and
(c)On Catholic Easter Sunday each year
and such time be supervised by a person or agency agreed between the parties in writing but failing agreement, L Services, with specific times to be agreed between the parties subject to the availability of the supervisor/agency.
4.For the purposes of Order 3:
(a)The father…
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- AGLC
- Fontain & Pretre (No 2) [2022] FedCFamC1F 200
- Case
- [2022] FedCFamC1F 200
- Decision Date
CaseChat Overview and Summary
In the case of Fontain & Pretre (No 2), the primary issue before the court was to determine the living arrangements and visitation rights for the two children, X and Y, born in 2014 and 2016 respectively. The court was tasked with deciding whether the children should continue to live with the mother with supervised visitation by the father, or if the father should have primary custody with visitation by the mother. This decision hinged on assessing the risk of harm to the children under each proposed arrangement. The court’s determination was guided by the paramount consideration of the children’s best interests, which included evaluating the likelihood of physical or psychological harm, the need for adequate and proper parenting, and the parents' ability to fulfill their responsibilities towards the children.
The legal issues central to the case involved interpreting and applying the principles and objects outlined in Part VII of the Family Law Act 1975. Specifically, the court needed to consider the right of children to have meaningful involvement with both parents, the necessity of protecting children from abuse and family violence, and the requirement for parents to share responsibilities concerning the care, welfare, and development of their children. Additionally, the court had to weigh the allegations of family violence, neglect, and other serious concerns about the parents' capacity to provide a safe and nurturing environment. The evidence presented by both parents, including expert reports and testimonies, was critically assessed to determine the most suitable living arrangement that would minimize the risk of harm to the children.
After evaluating the evidence and applying the relevant legal principles, the court concluded that the children should continue to live with the mother, subject to certain conditions, and have supervised visitation with the father. The court found that the primary concern was the risk of harm to the children, particularly in relation to the allegations of family violence and coercive control. The evidence indicated that the mother was better positioned to provide a stable and secure environment, despite the challenges and allegations against her. The court also noted the importance of both parents being involved in the children's lives but determined that the risk of harm posed by the father outweighed the benefits of unsupervised visitation. Consequently, the court ordered supervised visitation for the father and set specific conditions to ensure the children's safety and well-being.
The final orders made by the court stipulated that the children would continue to live with the mother, with the father having supervised visitation under strict conditions. These conditions included the presence of a supervisor during all visitations, the use of a specific visitation exchange location, and the implementation of a detailed supervision plan to mitigate any risks. The court also mandated regular reviews to ensure compliance with the orders and to reassess the children's living arrangements as necessary. This decision reflects the court's commitment to prioritizing the children's safety and best interests while striving to maintain their relationship with both parents.
The legal issues central to the case involved interpreting and applying the principles and objects outlined in Part VII of the Family Law Act 1975. Specifically, the court needed to consider the right of children to have meaningful involvement with both parents, the necessity of protecting children from abuse and family violence, and the requirement for parents to share responsibilities concerning the care, welfare, and development of their children. Additionally, the court had to weigh the allegations of family violence, neglect, and other serious concerns about the parents' capacity to provide a safe and nurturing environment. The evidence presented by both parents, including expert reports and testimonies, was critically assessed to determine the most suitable living arrangement that would minimize the risk of harm to the children.
After evaluating the evidence and applying the relevant legal principles, the court concluded that the children should continue to live with the mother, subject to certain conditions, and have supervised visitation with the father. The court found that the primary concern was the risk of harm to the children, particularly in relation to the allegations of family violence and coercive control. The evidence indicated that the mother was better positioned to provide a stable and secure environment, despite the challenges and allegations against her. The court also noted the importance of both parents being involved in the children's lives but determined that the risk of harm posed by the father outweighed the benefits of unsupervised visitation. Consequently, the court ordered supervised visitation for the father and set specific conditions to ensure the children's safety and well-being.
The final orders made by the court stipulated that the children would continue to live with the mother, with the father having supervised visitation under strict conditions. These conditions included the presence of a supervisor during all visitations, the use of a specific visitation exchange location, and the implementation of a detailed supervision plan to mitigate any risks. The court also mandated regular reviews to ensure compliance with the orders and to reassess the children's living arrangements as necessary. This decision reflects the court's commitment to prioritizing the children's safety and best interests while striving to maintain their relationship with both parents.
Orders
Orders of the court
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Background
Background to the litigation
This case concerns two children, X born in 2014, who is seven years old, and Y born in 2016, who will be six years old by the time this judgment is delivered (“the children”). The children currently live with the mother and spend supervised time with the father. The Court had to decide whether the children continue to live with the mother and spend time with the father, or alternatively live with the father, and spend time with the mother. This case primarily concerned risk of harm assessment. The decision as to which order is in the best interests of the children is made by reference to where there is the least risk of harm for the children. These reasons for judgment explain why the Court has decided that the children should continue to live with the mother, on certain conditions, and spend supervised time with the father.BACKGROUND The father is 43 years old, and the mother is 29 years old (“the parents”). The parents commenced cohabitation in 2012 when the mother was 19 years old. The mother asserts that she commenced an intimate relationship with the father in 2008, when she was 15 years old. The mother maintained this assertion in cross-examination. The father contends their intimate relationship commenced when the mother was 18 years old. Irrespective of which age it was, there is a significant age difference between the parents. The relationship was tumultuous. Each parent makes very serious allegations against the other, all of which are denied. The allegations include family violence including coercive and controlling violence, neglect and abuse of the children, mental health difficulties, and abuse of drugs and alcohol. By the time of the final hearing, however, the only relevant allegations related to family violence, including coercive and controlling violence. As will become evident, there were also concerns about the parenting capacity of both of the parents. Shortly after the parents separated, with the father leaving the matrimonial home located in Suburb S, New South Wales (“the matrimonial home”), an informal agreement was reached between the parents whereby the father would spend time with the children each Tuesday and Saturday from 9.00am to 5.00pm. In August 2018 the mother and the children moved from the matrimonial home into the maternal grandparent’s home in Suburb C, New South Wales. The father subsequently moved back into the matrimonial home. Between 10 August and 22 August 2018 the father retained the children contrary to the parents’ agreement. The father contends that his reasoning was that he had concerns about the children’s welfare in the mother’s care. The mother commenced the present proceedings in August 2018 and on 22 August 2018 Baumann J made orders for the father to return the children to the mother by 5.00pm that day. On 24 August 2018 Baumann J made orders that the children were to live with the father each Tuesday from 9.00am to 5.00pm, each alternate weekend from Friday 5.00pm until Monday 9.00am, and each alternate Thursday from after day care to Friday 5.00pm, with the children to live with their mother at all other times.
Evidence
Evidence Before The Court
The father’s proposal has evolved during the course of the hearing. The evolution will be discussed in the reasons for judgment below. The father’s final proposal was contained in his further amended minute of order emailed to chambers on 4 November 2021 and reproduced in Schedule C to these reasons. He proposed that he have sole parental responsibility, that the children live with him, and spend time with the mother from Monday to Friday after school to 6.00pm and from 9.00am–6.00pm each alternate weekend, seven days during the school holidays, 14 days during Christmas holidays, and alternate years for special occasions. He also proposed that the mother be restrained from entering her home with the child without a supervisor knowledgeable of the risk of harm Mr M poses and that should the child come into contact with him, the mother’s time with the child be suspended until further order of the Court.THE EVIDENCE BEFORE THE COURT In support of her case, the mother relied on the following documents:(a)Her Affidavit filed 17 October 2018;(b)Affidavit of Dr K filed 25 September 2020;(c)Her Affidavit filed 20 October 2021;(d)Her Case Outline filed 26 October 2021, and the attached proposed minute; and(e)Various documents tendered and marked as exhibits A1–A3. In support of his case, the father relied on the following documents:(a)Affidavit of Ms Pretre filed 3 September 2018;(b)Affidavit of Mr N Pretre filed 3 September 2018;(c)His Affidavit filed 25 October 2021;(d)His Case Outline filed 26 October 2021; and(e)His Costs Notice, tendered and marked as exhibit R1. In support of their case, the Independent Children’s Lawyer relied on the following documents:(a)Various documents tendered and marked as exhibits ICL1–ICL15, including the Family Report of Ms R dated 7 January 2019 (ICL11) and the update Family Report of Ms P dated 16 September 2021 (ICL10).THE APPLICABLE LAW The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as “the Act”). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s 60CA. The objects and principles of Part VII are set out at s 60B:60B Objects of Part and principles underlying it(1)The objects of this Part are to ensure that the best interests of children are met by:(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and(d)parents should agree about the future parenting of their children; and(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:(a)to maintain a connection with that culture; and(b)to have the support, opportunity and encouragement necessary:(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and(ii)to develop a positive appreciation of that culture.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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