Fontain & Pretre (No 4)

Case [2025] FedCFamC1F 218

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Fontain & Pretre (No 4) [2025] FedCFamC1F 218

File number(s): SYC 7987 of 2023
Judgment of: ALTOBELLI J
Date of judgment: 4 April 2025
Catchwords: FAMILY LAW – PARENTING – Where the Court is asked to determine interim arrangements for two children – Where the applicant seeks for the children to spend time with her new partner – Where the Court has previously made findings of unacceptable risk regarding this partner – Where the respondent seeks unsupervised time with the children – Where the Court has previously found that the respondent lacks the parental capacity for unsupervised time – Where the Independent Children’s Lawyer opposes all changes – Where the parties are largely in agreement on personal protection injunctions – Where the Court determines that any change would be adverse to the best interests of the children – Where personal protection injunctions are made.
Legislation:

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61D, 61DA, 61DAA, 61DAB, 65DAA, 65DAAA

Family Law Amendment Act 2024 (Cth)
Cases cited:

Andrew & Delaine [2009] FamCAFC 182

Fontain & Pretre (No 2) [2018] FamCA 676

Fontain & Pretre (No 2) [2022] FedCFamC1F 200

Fontain & Pretre [2018] FamCA 675

Fontain & Pretre [2022] FedCFamC1F 198

Franklyn & Franklyn [2019] FamCAFC 256

Goode & Goode (2006) FLC 93-286

Hartley & Hartley [2021] FedCFamC1F 178

Marvel & Marvel (No 2) (2010) 43 Fam LR 348

Melounis & Melounis (No 4) [2024] FedCFamC1F 778

SS v AH [2010] FamCAFC 13
Division: Division 1 First Instance
Number of paragraphs: 100
Date of hearing: 20 February 2025
Place: Sydney
Counsel for the Applicant: Mr Cummings SC
Solicitor for the Applicant: Diamond Conway Lawyers
Counsel for the Respondent: Mr Mathews
Solicitor for the Respondent: Barker Evans
Solicitor for the Independent Children's Lawyer: Ms Mason of Mason Mia & Associates-Solicitors & Advocates

ORDERS

SYC 7987 of 2023

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:

4 APRIL 2025

THE COURT ORDERS THAT:

Application and Response

1.The Application in a Proceeding filed 18 December 2024 and the Response to an Application in a Proceeding filed 30 January 2025 be dismissed.

Injunctions

2.The Respondent Father is restrained, on a without admissions basis, from:

(a)physically approaching the Applicant Mother; and

(b)following or observing the Applicant Mother or arranging or requesting a third party to follow or observe the Applicant Mother.

Costs

3.The costs of, and incidental to these proceedings is reserved and remitted for consideration by the trial judge at the conclusion of the final hearing.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the…

Continue reading Fontain & Pretre (No 4)

Sign in free to access the full text

Details
AGLC
Fontain & Pretre (No 4) [2025] FedCFamC1F 218
Case
[2025] FedCFamC1F 218
Decision Date

CaseChat Overview and Summary

This case involves two children, X and Y, and the ongoing dispute between their parents, Ms Fontain and Mr Pretre. The matter has been before the Court on numerous occasions, with serious allegations of family violence, neglect, and abuse being made by both parties. The Court is tasked with determining the appropriate interim arrangements for the children, including time spent with Mr M, the mother's current husband. This decision follows previous findings of unacceptable risk regarding Mr M's conduct towards a minor, which led to a finding of grooming behaviour. The Independent Children's Lawyer opposes any changes to the current arrangements.

The legal issues before the Court include whether Mr M should be permitted to spend time with the children, given the previous findings of unacceptable risk, and whether the father should have unsupervised time with the children, despite previous findings that he lacks the parental capacity for such arrangements. The Court must also consider the best interests of the children in making these determinations.

In considering these issues, the Court noted that the evidence provided by Mr M regarding his previous inappropriate conduct towards a minor was unconvincing. The Court found that any change to the existing arrangements would be adverse to the best interests of the children, given the lack of desire for change from the children themselves and the absence of any valid reason to remove the existing safeguards. The Court also took into account the parties' agreement on personal protection injunctions, which were subsequently made.

The Court dismissed the application and response, and made orders restraining the father from physically approaching or following the mother, as well as arranging or requesting a third party to do so. The costs of the proceedings were reserved for consideration by the trial judge at the conclusion of the final hearing.

Orders

Orders of the court

SYC 7987 of 2023

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:

4 APRIL 2025

THE COURT ORDERS THAT:

Application and Response

1. The Application in a Proceeding filed 18 December 2024 and the Response to an Application in a Proceeding filed 30 January 2025 be dismissed.

Injunctions

2. The Respondent Father is restrained, on a without admissions basis, from:

(a) physically approaching the Applicant Mother; and

(b) following or observing the Applicant Mother or arranging or requesting a third party to follow or observe the Applicant Mother.

Costs

3. The costs of, and incidental to these proceedings is reserved and remitted for consideration by the trial judge at the conclusion of the final hearing.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

This case concerns two children, X born 2014, now eleven 11 years old, (“X”), and her brother Y born 2016, now nine years old (“Y”) (collectively “the children”). The children currently live with Ms Fontain (“the mother”) and spend supervised time with Mr Pretre (“the father”) (collectively “the parents”). The Court must decide what further interim orders should be made for the children to spend time with the father and with Mr M (“Mr M”), the mother’s current husband.BACKGROUND This matter has a long and tumultuous history both in and out of this Court. Throughout the proceedings each parent has made very serious allegations against the other, all of which have been denied. The allegations include family violence, coercive and controlling conduct, neglect, abuse of the children, mental health difficulties, and abuse of drugs and alcohol. These allegations form the background of the complex interpersonal and interfamilial dynamics at play in this case. The father is 46 years old, and the mother is 32 years old. The parents commenced cohabitation in 2012 when the mother was 19 years old. The parents separated in or about May 2018. Shortly after the parents separated, the father left the former matrimonial home located in Suburb O, New South Wales (“the former matrimonial home”). Around the same time, an informal agreement was reached between the parents whereby the father would spend time with the children each Tuesday and Saturday from 9.00 am to 5.00 pm. In August 2018, the mother and the children moved from the former matrimonial home into the maternal grandparent’s home in Suburb C, New South Wales. The father subsequently moved back into the former matrimonial home. Between 10–22 August 2018, the father retained the children contrary to the parents’ agreement. The mother commenced the first tranche of proceedings at this time as a result. On 22 August 2018, Baumann J made orders for the father to return the children to the mother by 5.00 pm that day. On 24 August 2018, Baumann J further ordered that the children were to live with the mother and spend time with the father each Tuesday from 9.00 am to 5.00 pm, each alternate weekend from Friday 5.00 pm until Monday 9.00 am, and each alternate Thursday from after day care to Friday 5.00 pm (Fontain & Pretre [2018] FamCA 675). On 27 August 2018, McClelland J, as his Honour then was, suspended the Orders made on 24 August 2018. In their place, his Honour ordered that the children live with the mother, spend supervised time with the father, and appointed an Independent Children’s Lawyer (Fontain & Pretre (No 2) [2018] FamCA 676). On 24 September 2018, Johnston J varied the Orders made on 24 August 2018. The effect of the variation was to ensure that the maternal uncle was not permitted to care for the children, or to be present with the children without the mother being present. In December 2018, the children were assessed by a paediatrician, and Y was diagnosed as having expressive and receptive language delay, a degree of global developmental delay, and autistic features that warranted further assessment by a developmental paediatrician. Around the same timeframe, the mother commenced a relationship with Mr M

Evidence

Evidence Before The Court

There seems no desire by the children for change and no valid reason why the Court would feel comfortable removing any of the existing safeguards in place.The evidence of Mr M The evidence provided by Mr M in his affidavit filed 18 November 2024 (“Mr M’s affidavit”) was his first direct evidence during the proceedings. In Mr M’s affidavit he deposes to being an altruistic and caring individual who is prepared to financial and emotionally support the mother and the children. By all accounts this characterisation appears to match the mother’s evidence and that provided by the Single Joint Expert. It is also uncontroversial that the children bear positive views of, and feelings towards Mr M. This is to be commended. Notwithstanding such praise, the Court is tasked with determining at this interim stage whether Mr M should be permitted to spend time with the children despite the previous findings of this Court.Explanation In his affidavit, Mr M outlines the background behind the grooming messages that formed the basis of the prior finding of unacceptable risk. In short, Mr M was asked by a family friend to assist his troubled adolescent son due to prior experience Mr M had as mentor to his own younger brother. The subject child was undergoing serious family issues and potential abuse, truanting from school and newly expressing his homosexuality and desire to identify as a female. Mr M was asked to engage with the child through text messages, seemingly as a form of quasi-therapy, for the sole purpose of informing the child’s “father how far [the child] would go” (Mr M’s affidavit, paragraph 53). Mr M acknowledges that he pushed beyond the limits of acceptable conduct, rationalising that it was a “complete lapse of judgment on [his] behalf” (Mr M’s affidavit, paragraph 56). Respectfully, such characterisation minimises the seriousness of what he did to a vulnerable minor. Mr M’s characterisation of his actions as an error or mistake was also a point of concern for the Single Joint Expert:244.…My concern is the characterisation of the communication with the child as a “mistake” and the suggestion that this communication was in the service of the child’s father who was seeking more information. The lack of accountability for the communication is concerning as there is no real understanding of why the inappropriate conversation occurred, and what may have followed had the minor decided to meet with [Mr. M].(Emphasis in original) The Court finds unconvincing the evidence given by Mr M in relation to his prior grooming behaviour. This is a perspective shared by Dr CC and the Single Joint Expert as noted at paragraphs 239 and 240 of the Single Joint Expert Report:239.[Dr CC’s] opinion is that [Mr M’s] “account is somewhat difficult to accept but is not implausible and it is consistent with the text message exchange between [Mr M] and the child’s father. I am also of the view that [Mr M’s] reasoning in relation to his conduct is superficial and clearly inappropriate but commensurate with his intellectual capacity.”240.I concur with [Dr CC’s] assessment [Mr. M] has limited in insight and self-reflective capacity and with unsophisticated reasoning. This may explain his superficial explanation about his inappropriate communication.(Emphasis in original)

Decision

Reasons for decision

Section 61DAA of the Act provides the Court with an understanding of what joint decision-making about major long-term issues entails:61DAA Effect of parenting order that provides for joint decision-making about major long-term issues(1) If a parenting order provides for joint decision-making by persons in relation to all or specified major long-term issues in relation to a child, then, except to the extent the order otherwise specifies, the order is taken to require each of the persons:(a) to consult each other person in relation to each such decision; and(b) to make a genuine effort to come to a joint decision.(2) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly. Subject to any order to the contrary, s 61DAB clarifies that if a child is spending time with a person under a parenting order, the order is not taken to require that person to consult with a person who has parental responsibility about decisions that are made in relation to the child that are not major long-term issues. Because s 60CA and s 60B refer to the best interests of the child, the Court must consider s 60CC which specifies how the Court determines what is in a child’s best interests:60CC How a court determines what is in a child’s best interestsDetermining child's best interests(1) Subject to subsection (4), in determining what is in the child’s best interests, the court must:(a) consider the matters set out in subsection (2); and(b) if the child is an Aboriginal or Torres Strait Islander child—also consider the matters set out in subsection (3).General considerations(2) For the purposes of paragraph (1)(a), the court must consider the following matters:(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:(i) the child; and(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);(b) any views expressed by the child;(c) the developmental, psychological, emotional and cultural needs of the child;(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;(f) anything else that is relevant to the particular circumstances of the child.(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and(b) any family violence order that applies or has applied to the child or a member of the child’s family.(Emphasis in original)

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.