Fontaine & Fontaine - [2020] FCCA 3324

FEDERAL CIRCUIT COURT OF AUSTRALIA

FONTAINE & FONTAINE & ANOR

[2020] FCCA 3324

Catchwords:
FAMILY LAW – Parenting – interim hearing – children aged 7 years and 8 years – allegations of family violence between the father and second respondent – where the father has been charged with serious offences and an Intervention Order has been made protecting the second respondent mother and her two children – both mother’s assert that the father is a risk to their child – parties mutually agree father should spend supervised time with the children – father asserts right to remain silent in relation to the alleged incident of family violence giving rise to charges and the Intervention Order – father does not seek a certificate pursuant to s128 of the Evidence Act.

Legislation:

Evidence Act 1995 (Cth) ss.21, 128

Family Law Act 1975 (Cth), ss.4AB, 60CC

Cases cited:

Deiter & Deiter [2011] FamCAFC 82

Field & Kingston (2018) FLC 93-850

Goode & Goode (2006) FLC 93-286

Hearne v Street (2008) 235 CLR 125

Harman v Secretary of State for the Home Department [1983] 1 AC 280

Langley & Tarelli and Anor (No. 2) [2020] FamCAFC 126

Marvel & Marvel [2010] FamCAFC 101

Petty v The Queen (1991) 173 CLR 95

SS & AH [2010] FamCAFC 13

Applicant:

MS FONTAINE

First Respondent:

MR FONTAINE

Second Respondent:

MS BELL

File Number:

ADC 2502 of 2020

Judgment of:

Judge Kari

Hearing dates:

13, 23 October 2020

Date of Last Submission:

23 October 2020

Delivered at:

Adelaide

Delivered on:

8 December 2020

REPRESENTATION

Counsel for the Applicant:

Ms Cocks

Solicitors for the Applicant:

Swan Family Lawyers

Counsel for the First Respondent:

Ms Dickson

Solicitors for the First Respondent:

Cifuentes Lawyers

Counsel for the Second Respondent:

Ms Miller

Solicitors for the Second Respondent:

Tindall Gask Bentley

ORDERS UNTIL FURTHER ORDER

That the child X (born in 2013) live with her mother Ms Fontaine.
That the child Y (born in 2019) live with her mother, Ms Bell.
That the father spend time with the child X:
(a)Each Saturday from 9.30am until 5pm; and
(b)On Christmas Day from 3pm until 7pm
That the father spend time with the child Y to coincide with the father’s time with the child X:
(a)Each Saturday from 9.30am until 11.30am; and
(b)On Christmas Day from 3pm until 5pm.
That the father’s time spending with both children at all times be supervised by one of the following (provided that they have filed an affidavit confirming that they are willing to supervise time and that they have read and understood the Legal Services Commission brochure entitled “Should I Supervise Contact”):
(a)His brother Mr B;
(b)His sister-in-law Ms C;
(c)The paternal grandfather Mr D; and
(d)The paternal grandmother Ms E.
PROVIDED HOWEVER that at such times that the father is spending time with both X and Y pursuant to these orders, such supervision shall at all times be undertaken by two of the supervisors provided for herein.
That handover be affected at the commencement and conclusion of…

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 Fontaine & Fontaine

Details

AGLC: Fontaine and Fontaine and Anor [2020] FCCA 3324
Case: [2020] FCCA 3324
Decision Date: 8 December 2020

CaseChat Overview and Summary

In *Fontaine & Fontaine*, Kari J of the Family Court of Australia considered parenting orders concerning two children aged seven and eight years. The dispute involved allegations of family violence between the father and the second respondent, who is the mother of the children. The father had been charged with serious offences, and an intervention order had been made protecting the mother and the children. Both the mother and the second respondent asserted that the father posed a risk to their child.

The central legal issues before the court were whether the father should have supervised time with the children, and the implications of the father’s assertion of his right to remain silent regarding the alleged family violence incident that led to the charges and the intervention order. The father did not seek a certificate under s 128 of the *Evidence Act 1995* (Cth) in relation to his silence.

Kari J determined that the parties had mutually agreed that the father should spend supervised time with the children. The court noted the father's assertion of his right to remain silent concerning the allegations of family violence and the resulting intervention order. The judge applied principles of family law concerning the paramountcy of the child’s welfare and best interests, considering the allegations of family violence and the existing intervention order. The court acknowledged the father's right to remain silent but also considered the impact of this silence on the assessment of risk to the children.

The court made interim orders for supervised time between the father and the children.

Orders