Fontaine & Fontaine
[2020] FCCA 3324
•8 December 2020
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 the father’s time between each mother and one of the supervisors in the absence of the father at the Suburb F Shopping Centre carpark closest to the G store.
That the father is restrained and an injunction is granted restraining the father from being present at the Suburb F Shopping Centre when handover is being effected.
That Ms Fontaine be restrained and an injunction is granted restraining her from altering X’s school from H School without the written consent of the father or an order of the court.
That this order stand as an authority for the father and Ms Fontaine to:
(a)Obtain all school notices, letters, school reports and such other information that parents usually receive directly from the school; and
(b)Attend all parent/teacher interviews and any other event that parents are usually invited to attend, PROVIDED HOWEVER that they each inform the other no later than 7 days prior to any such attendance that they plan on attending such an event.
That each Ms Fontaine and Ms Bell advise the father as soon as practicable if the child in their care is injured or hospitalised, and when doing so provide details of the treating hospital and/or medical practitioner, with this order to stand as authority for such treating professional to release information to the father that parents would ordinarily receive.
That the father be at liberty to provide a copy of this order to H School and any treating professional referred to in paragraph 10 herein.
That the Ms Fontaine be restrained and an injunction is granted restraining her from taking X to any counselling or for any therapeutic treatment without the prior written consent of the father or an order of the court SAVE AND EXCEPT as to the “Banana Splitz” program.
The parties do all such things as may be reasonably required to enable a Family Assessment to be carried out with respect to the competing applications for parenting orders before the Court, with such Assessment and the Report arising thereafter:
(a)To include interviews with the children and, at the discretion of the expert, observed interaction of the children with any relevant adult person in addition to the parties as the expert considers appropriate;
(b)To be carried out by such person as agreed in writing between the parties within fourteen (14) days or, in default of agreement, as Ordered by the Court upon application of either party at the expiration of that time;
(c)To be at the joint and equal expense of the parties; and
(d)To be released to the parties no later than 31 May 2021.
(e)The Family Assessment Report to deal with the following matters:
(i)Any views expressed by the said children and any factors (such as the said child maturity or level of understanding) that would affect the weight that the Court should place on those wishes;
(ii)The matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and
(iii)Any other matters that the expert considers important to the welfare or best interests of the said children.
(f)The solicitors for the parties’ forward copies of all documents filed with the Court and all Orders made in these proceedings to the nominated report writer in accordance with the directions of the expert.
(g)The parties do all things necessary to facilitate the completion of the report by the expert, including making themselves available for appointments by expert and executing any authorities for the release of information to the expert.
(h)The expert be at liberty to liaise with any person in relation to the welfare of the children.
(i)The parties be restrained from providing any documents (other than those filed with this Court or Orders made in these proceedings) to the expert without providing a copy to the other party, such copy to be provided no less than seven (7) days prior to any appointments with the expert (NOTING the expert has the discretion to accept or reject the document so provided to them).
(j)That the Applicant file and serve a copy of the Report within 48 hours of receipt of the same.
That the parties and properly instructed counsel attend an informal settlement conference following the release of the Report and no later than 7 days prior to the adjourned date.
That the proceedings be adjourned for Mention only to 10:30am on 15 June 2021.
IT IS NOTED that publication of this judgment under the pseudonym Fontaine & Fontaine & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 2502 of 2020
| MS FONTAINE |
Applicant
And
| MR FONTAINE |
First Respondent
And
| MS BELL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings relate to two young children, X, who was born in 2013 and is 7 years of age, and Y, who was born in 2019 and is not quite 2 years of age.
The First Respondent, Mr Fontaine is the father of both children. The Applicant, Ms Fontaine is the mother of the child X and the Second Respondent, Ms Bell is the mother of the child Y.
Each of the mothers are in dispute with the father in relation to his time spending arrangements with each child.
The father has not spent any time with the child X since about 8 September 2020, and the child Y since 8 June 2020.
The dispute has arisen as a consequence of events involving serious allegations of family violence which transpired between the father and Ms Bell on 8 June 2020, when the two children and Ms Bell’s older child were present.
The incident which took place on 8 June 2020 has resulted in the father facing criminal proceedings, namely:
a)One count of aggravated indecent assault and one count of aggravated assault of Ms Bell; and
b)An Intervention Order naming Ms Bell, Y and J as protected persons.
In addition and after those charges were laid against the father, the father was charged with one count of assault of Ms Bell’s child J in relation to an incident which is said to have taken place in early December 2019. The court has recently been advised that this charge is due to be withdrawn, and it appears from information that has been received from SAPOL that this is a consequence of Ms Bell not wanting J to give evidence.
So far as the charges involving Ms Bell are concerned, I am also aware that there are allegations that the father has breached the Intervention Order and his bail conditions on at least two separate occasions and that he has been charged with those offences.
As a consequence of these recent events both mothers assert that the father is a risk to their child and they are seeking to impose boundaries around the father’s time spending arrangements to ensure that those risks are ameliorated.
Despite the proceedings being at an early stage, I have the benefit of extensive material that has been filed by the parties, together with information that has been produced from various organisations including South Australian Police (“SAPOL”) and the Department of Child Protection (“DCP”).
Short background
The brief background of the parties and their relationship history is as follows:
a)The father was born in 1982 and he is 38 years of age.
b)Ms Fontaine was born in 1983 and she is 37 years of age.
c)Ms Bell was born in 1988 and she is 32 years of age.
d)The father and Ms Fontaine began living together in 2010 and were married in 2012. Their child X was born in 2013.
e)The father and Ms Fontaine separated on 25 November 2016. A divorce order was made on 13 August 2020.
f)The father began a relationship with Ms Bell in 2017 and they started living together in 2018. Their child Y was born in 2019.
g)The father and Ms Bell separated on 10 December 2019.
h)Ms Bell has a child from a previous relationship namely, J who was born in 2014 and is 6 years of age. J lives primarily with Ms Bell and spends two nights a fortnight in the care of his father.
i)Following her separation from Mr Fontaine, Ms Fontaine re-partnered with Mr K and they now live together. Mr K has three children from a previous relationship.
There appears to be no dispute between the father and Ms Fontaine that the care arrangements for X from around the time of separation in late 2016 until 8 June 2020 were amicable and ones that the parents had arrived at by agreement through various attendances at family dispute resolution. As best as I can ascertain those care arrangements appear to have been as follows:
a)At the time of separation X lived with Ms Fontaine and spent time with the father each alternate weekend from 6.00pm Thursday until 6.00pm Sunday.
b)In approximately January 2018, X began living with the father each alternate Sunday from 6.30pm until 6.30pm Monday, and each intervening Wednesday from 6.30pm until 6.30pm Monday; a total of 6 nights across the fortnight.
c)In January 2019, agreement was reached to vary the structure of Masie’s time with the father as she was commencing school. The 6 nights a fortnight regime was re-structured to take place each alternate weekend from the conclusion of school on Friday until the commencement of school Tuesday, together with time each intervening Monday from the conclusion of school until the commencement of school on Wednesday. In addition the parents reached agreement that X would live with each parent during school holidays on a week about basis.
There also does not appear to be any dispute between the father and Ms Bell that the father spent time with Y following their separation and in particular at the very least:
a)The father, Ms Bell, Y and J holidayed together in Queensland in early 2020; and
b)From approximately January 2020 until March 2020, the father cared for Y each Monday and Thursday from 8.30am until 3.00pm while Ms Bell was at work.
The arrangements that were in place for the father to spend time with Y from March 2020 until June 2020 are not entirely clear to the Court, however both parents seem to agree that the father did spend time with Y both on his own and in the presence of Ms Bell.
The current proceedings
These proceedings initially commenced as two separate proceedings. However on 13 October 2020 I consolidated the files and the proceedings in relation to both children are now being heard together.
The proceedings originally came before the court when Ms Fontaine filed an Initiating Application on 16 June 2020, several days after the incident on 8 June 2020. That application was filed in circumstances where Ms Fontaine had become aware of the incident that had taken place and she had suspended the father’s time spending arrangements with X.
In her Initiating Application, Ms Fontaine sought urgent interim parenting orders that provided for X to live with her and for the father to be prohibited from contacting X or Ms Fontaine, or approaching or being within a short distance of Ms Fontaine’s residence, X’s school or any venue where X attends sport; effectively that the father spend no time with X. Only one order was sought by way of final order by Ms Fontaine, namely that X live with her.
Ms Bell was not named as a party to the Initiating Application and that application only related to X.
On 22 July 2020, the father filed his Response to that Application, in which he sought interim orders to spend time with X on an equal shared care basis as follows:
a)In week one:
i)From the conclusion of school on Friday until the commencement of school on Tuesday;
ii)From the conclusion of school on Thursday until the commencement of school on Friday;
b)In week two:
i)From the conclusion of school on Monday to the commencement of school on Wednesday.
The proceedings between the father and Ms Fontaine first came before this Court in a busy Duty List on 27 July 2020. On that occasion orders were made for the father to spend time with X from 9:30am until 5:00pm each Saturday with such time to be supervised by either the father’s brother Mr B or his sister-in-law Ms C. Procedural orders were also made for the father and Ms Fontaine to attend a Child Dispute Conference with a Family Consultant of the Court pursuant to section 11F of the Family Law Act (“the Act”), for information to be obtained from the South Australian Police pursuant to section 69ZW of the Act and for the father to seek the leave of the Magistrates Court to file and serve all of the documents and orders relating to the criminal proceedings against him involving Ms Bell. The proceedings were adjourned for interim hearing with respect to the father’s time spending arrangements to 8 September 2020.
In accordance with the orders, the father and Ms Fontaine attended a Child Dispute Conference with Family Consultant Ms L on 20 August 2020. At the time of the Conference, Ms L recorded:
a)The parents appeared to agree that the father’s supervised visits were going well for X.
b)The father indicated that he wished to increase the pool of supervisors to include his parents on the basis that he additionally was seeking to resume overnight time spending with X.
c)The mother did not support the paternal grandparents supervising any time between the father and X, and nor did she agree to increase the time spending arrangements beyond the existing orders prior to the conclusion of the criminal proceedings and any Child Protection investigation.
On 24 August 2020, the father filed a separate Initiating Application in which he sought parenting orders with respect to the child Y. Ms Bell was the respondent to that application.
In that Initiating Application, the father sought urgent interim orders to spend time with Y each week on Wednesday from 1:00pm until 5:00pm and on Saturday from 10:00am until 5:00pm. By way of final orders the father set out that he sought an order for equal shared parental responsibility, that Y live with Ms Bell and that he spend time with Y as agreed or in default of agreement as ordered by the court.
Upon the filing of the father’s Initiating Application, an Order was made in chambers on 25 August 2020 by Registrar Schirripa for the proceedings between the father and Ms Bell to be listed for mention at the same hearing already scheduled on 8 September 2020 in relation to the proceedings relating to X.
On 1 September 2020, Ms Fontaine filed an Amended Initiating Application seeking additional interim orders in relation to X, and in particular:
a)an injunction restraining the father from attending handovers;
b)an injunction restraining the father from discussing the proceedings with X;
c)the appointment of an Independent Children's Lawyer;
d)that her Application be served on Ms Bell; and
e)for Ms Fontaine to have access to the file in the proceedings between the father and Ms Bell.
On 4 September 2020, Ms Bell filed her Response to the father’s Initiating Application regarding Y. In her Response, Ms Bell sought interim orders for her to have sole parental responsibility for Y and for Y to live with her. She also sought procedural orders to obtain information from SAPOL and the Department for Child Protection pursuant to section 69ZW and for her and the father to attend a section 11F conference. She did not seek any orders for the father to spend time with Y.
The Court hearing on 8 September 2020 was conducted by Microsoft Teams as a result of the restrictions in place due to the COVID-19 pandemic.
At the start of the hearing, the Court was advised that in the early hours of that morning, Ms Bell had received a concerning text message from the father, which was alleged to have been in breach of the Intervention Order protecting Ms Bell. The matter was stood down over the lunch period to enable counsel to obtain instructions with respect to the text message as the court was told that it altered the tenor of the proceedings from the perspectives of each mother.
After the matter was recalled after the lunch break, the father’s counsel advised the Court that the Police had attended at her Chambers at approximately 3.30pm for the purpose of speaking with the father. The court expressed some concern to the parties about the location of the father at his Counsel’s Chambers being disclosed to SAPOL and that the police had attended at chambers and the potential impact that his might have upon Counsel, the staff of chambers, other members of chambers and their clients.
In the course of discussions with Counsel, Ms Fontaine’s counsel advised the Court that due to the contents of the father’s text message to Ms Bell, Ms Fontaine had concerns about facilitating X’s supervised time with the father pursuant to the orders made on 27 July 2020. On this basis, Ms Fontaine’s counsel made an oral application for the orders for the father’s time with X to be suspended. The Court did not hear the oral application.
As a result of the events that had unfolded over the course of the hearing and the two separate sets of proceedings before the Court both involving the father and running concurrently, a number of procedural orders were made on 8 September 2020 which provided for:
a)Ms Fontaine and Ms Bell to each be permitted to inspect and copy the documents filed, orders made and documents produced in the other set of proceedings involving the father;
b)Ms Fontaine and Ms Bell to each file and serve a list of the documents in the other set of the proceedings which they sought to rely upon at the adjourned hearing;
c)Ms Fontaine to file and serve an affidavit annexing agreed documents produced pursuant to the orders made under section 69ZW;
d)Ms Bell to file and serve an affidavit directed to the text message that she had received from the father that day and whether she had made a report to SAPOL or advised SAPOL of the location of the father over the course of that day;
e)The father to file and serve an affidavit in response to the affidavit to be filed by Ms Bell, together with an affidavit updating the Court as to the status of any pending charges, the Intervention Order against him and whether he intended to plead guilty to any of the pending charges.
f)Both sets of proceedings to be listed for a further interim hearing on 13 October 2020, with the proceedings to be heard concurrently and conducted on a face-to-face basis.
On 8 October 2020, the father filed an Amended Initiating Application in the proceedings relating to Y, in which he sought, among other things, interim orders to spend time with Y each Saturday from 10.00am until 5.00pm, with such time to be supervised by either one of Mr B, Ms C, or one of his parents Ms E and Mr D.
At the hearing on 13 October 2020, the father had not spent any supervised time with X pursuant to the orders made on 27 July 2020 from the time of the hearing on 8 September 2020. It does not appear to be disputed by the father and Ms Fontaine that following the hearing on 8 September 2020, Ms Fontaine sought through her solicitor to vary the father’s time with X and proposed that his time occur each Saturday from 11.00am until 2.00pm, under the supervision of Mr B or Ms C, at the M Play Centre. The father did not agree to Ms Fontaine’s proposal. The father’s position was that the mother needed to comply with the orders made on 27 July 2020.
The hearing on 13 October 2020 was adjourned part heard, with only the father’s counsel and Ms Bell’s counsel having completed making their submissions on that day. One of the reasons for the hearing being part heard was the difficulty of the Court navigating between the voluminous number of documents filed on two separate digital court files. To overcome this difficulty, further orders were made at the hearing on 13 October 2020 for the two proceedings to be consolidated and for a hardcopy Book of Documents to be prepared and delivered to the court. The proceedings were adjourned part heard to 23 October 2020 for Ms Fontaine’s counsel to make submissions and the father’s counsel to make any submissions in reply.
At the hearing on 23 October 2020, I reserved my judgment with respect to the matter.
On 6 November 2020, while judgment was still reserved, the father filed an Application in a Case in which he sought to adduce further evidence regarding the withdrawal of the aggravated assault charge relating to Ms Bell’s child J.
The father’s Application in a Case was heard on 13 November 2020, at which time orders were made by consent with:
a)The court noting that it was an “agreed fact that the charge of aggravated assault against the child J has been authorised for withdrawal and is expected to be withdrawn on the next court appearance in Suburb O on 26 November 2020.”
b)An order made for the Court to make enquiries with the embedded SAPOL officer in relation to the aggravated assault charge involving J and that any information from the embedded officer be received by the Court with respect to the reserved decision, with copies of any response to be provided to the parties.
A response was received from the embedded SAPOL officer on 17 November 2020 and forwarded to the parties on 17 November 2020. That response indicated that the charges were to be withdrawn as Ms Bell did not want J to give evidence.
The parties’ positions
Against all of that background, the issues in dispute between the parties at this juncture are relatively narrow.
While the father says that supervision is not necessary, he concedes that his time with each of the children should be supervised in light of the current criminal proceedings against him. In addition, the father asserts that in acceding to supervision he will also be protected from further allegations being made against him.
Accordingly, the most pressing issues before the Court are:
a)The identity of the supervisor;
b)The amount of supervised time that the father should spend with each of the children; and
c)Whether the father should have telephone communication with the child X.
The father proposes that he spend supervised time with the children as follows:
a)In relation to the child X:
i)On each alternate weekend from 9.30 am on Saturday until 3.00 pm on Sunday;
ii)In the intervening week, from 4.00 pm on Friday until 3.00pm on Sunday;
iii)From 2.00pm on Christmas Day 2020 until 5.00pm on Boxing Day; and
iv)From 12.00 noon on New Year’s Day 2020 until 3.00pm on 1 January 2021.
b)In relation to the child Y, on every Saturday from 10.00 am until 5.00 pm.
The father proposes that his brother Mr B and his sister-in-law, Ms C, who were ordered to supervise his time with X pursuant to the orders made on 27 July 2020, continue to supervise his time with both of the children. In addition, as flagged with the family consultant, he proposes that his parents Ms E and Mr D be added to the list of suitable supervisors.
The father additionally seeks orders in relation to X and her schooling that provide for:
a)The mother to be restrained from changing her school from H School; and
b)The father being authorised to obtain information from the school ordinarily received by parents and attend school functions that parents would ordinarily be invited to attend.
The father also seeks the continuation of an order made on 27 July 2020 restraining the mother from taking X to attend any counselling or therapeutic treatment without the prior written consent of the father having first been obtained, save and except the “Banana Splitz” program.
The father and Ms Fontaine have also promoted the appointment of an Independent Children’s Lawyer in these proceedings. This is an order that Ms Bell does not oppose. At this juncture however, while there is some basis for an independent children’s lawyer to be appointed, I consider the same to be premature.
It is Ms Fontaine’s position that:
a)The father should spend supervised time with X each Saturday from 10.00 am until 2.00 pm.
b)Time be supervised by Mr B and/or Ms C; she does not agree to the paternal grandparents supervising the father’s time.
c)There should be no special arrangement for Christmas Day as the Saturday time spending arrangement would fall on Boxing Day this year.
d)The court should not make any orders directed to H School as this is a child support issue.
e)There was no opposition to the continuation of the injunction restraining her from taking X to any therapy, other than “Banana Splitz”.
Ms Bell proposes that:
a)The father spend time with Y at a Children’s Contact Service.
b)Pending acceptance into a Children’s Contact Service, the father spend time with Y initially for one hour and then for two hours on a Saturday or Sunday of each week, under the supervision of Mr B and Ms C, with such time to occur at a public location such as a Play Café and for Y’s time with the father to coincide with X’s time with the father and due to the presence of two children, that both Mr B and Ms C be present.
c)There be no special arrangements for Christmas Day if the father’s time is taken on a Saturday as this would fall on Boxing Day, and given the age of Y she will not likely comprehend this day in any event.
The legal principles
In parenting cases both at an interim or final hearing stage, the paramount consideration of the Court is the best interests of the subject children.[1]
[1] Family Law Act 1975 (Cth), s 60CA.
In order to determine what is in a child’s best interests, the Court is guided by those factors set out in s60CC of the Act, as follows:
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
The Act also contains a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility,[2] however:
a)The presumption is specifically rebutted and not to be applied in situations relating to abuse and/or family violence; and/or
b)At an interim stage of proceedings, the Court has the discretion not to apply the presumption if the Court “considers that it would not be appropriate in the circumstances for the presumption to be applied…”[3]
[2] Section 61DA.
[3] Section 61DA(3).
If the presumption of equal shared parental responsibility is to be applied, then the Court is required to consider whether the child should spend equal time with each of their parents provided that any such equal time arrangements are in the child’s best interest and are reasonably practicable.[4]
[4] Section 65DAA.
If the presumption is not applied (for whatever reason), then the court is required to make orders that it considers to be in the best interests of the child with reference to those factors set out in section 60CC of the Act.
Family Violence is defined in section 4AB of the Act as follows:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d) cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
In Goode & Goode (2006) FLC 93-286 at 82, the Full Court set out the “legislative pathway” that is to be followed in interim parenting cases as follows:
a.identifying the competing proposals of the parties;
b.identifying the issues in dispute in the interim hearing;
c.identifying any agreed or uncontested relevant facts;
d.considering the matters in s60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
e.deciding whether the presumption in s61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
f.if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
g.if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s60CC, or impracticable;
h.if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s60CC, or impracticable
i.if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s60CC;
j.if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s60CC; and
k.even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
While the Full Court identified in Goode & Goode (at paragraph 68)
“…the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.”
This does not mean to say that the Court cannot and should not at an interim stage of the proceedings make findings, but rather that caution should be taken if findings are to be made.
The Full Court have considered the question of the making of findings at an interim stage of proceedings in a series of cases.
The decision of the Full Court in SS & AH [2010] FamCAFC 13, was cited with approval by the Full Court in Marvel & Marvel [2010] FamCAFC 101 (and in turn Marvel has been cited with approval by the Full Court in Eaby & Speelman [2015] FamCAFC 104). In Marvel at paragraph 120, the Full Court commented:
“As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children…”
The Full Court went on to say (at 122-123):
[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
“In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.”
[123] Later, at paragraph 100 their Honours amplified their comments and said:
“The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”
These comments from the Full Court should also be read in the context of the difficulty facing a decision maker at an interim stage where there are allegations of family violence requiring the assessment of risk. In Deiter & Deiter [2011] FamCAFC 82, The Full Court set out (at paragraph 61):
“The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.”
In addition in Deiter, the Full Court also discussed the use of corroborative evidence when weighed against the uncontested evidence of the parties.
The allegations against the father
The allegations made against the father take on some prominence in these proceedings for a range of reasons, but primarily because if made out they are serious incidences of family violence that colour these proceedings at every stage, and in particular:
a)They inform the question of parental responsibility;
b)They inform the best interest considerations, and in particular the primary considerations set out in section 60CC.
From the perspectives of each mother, the serious nature of the allegations warrant a cautious approach to the father’s time spending arrangements.
The father has explicitly acknowledged this in taking the position to agree to supervised time spending arrangements.
The father asserts however that he has a right to remain silent about the allegations (and particularly those relating to the events on 8 June 2020) given the criminal charges that he is facing.
It is the position of each mother however, that the father cannot hide behind an asserted right to silence in circumstances where he has not sought a certificate pursuant to s128 of the Evidence Act which provides:
(1)This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness:
(a) has committed an offence against or arising under an Australian law or a law of a foreign country; or
(b) is liable to a civil penalty.
(2) The court must determine whether or not there are reasonable grounds for the objection.
(3) Subject to subsection (4), if the court determines that there are reasonable grounds for the objection, the court is not to require the witness to give the evidence, and is to inform the witness:
(a)that the witness need not give the evidence unless required by the court to do so under subsection (4); and
(b)that the court will give a certificate under this section if:
(i)the witness willingly gives the evidence without being required to do so under subsection (4); or
(ii)the witness gives the evidence after being required to do so under subsection (4); and
(c)of the effect of such a certificate.
(4) The court may require the witness to give the evidence if the court is satisfied that:
(a)the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country; and
(b)the interests of justice require that the witness give the evidence.
(5)If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the court must cause the witness to be given a certificate under this section in respect of the evidence.
(6)The court is also to cause a witness to be given a certificate under this section if:
(a)the objection has been overruled; and
(b)after the evidence has been given, the court finds that there were reasonable grounds for the objection.
(7)In any proceeding in an Australian court:
(a)evidence given by a person in respect of which a certificate under this section has been given; and
(b)evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence;
cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.
(8)Subsection (7) has effect despite any challenge, review, quashing or calling into question on any ground of the decision to give, or the validity of, the certificate concerned.
(9)If a defendant in a criminal proceeding for an offence is given a certificate under this section, subsection (7) does not apply in a proceeding that is a retrial of the defendant for the same offence or a trial of the defendant for an offence arising out of the same facts that gave rise to that offence.
(10)In a criminal proceeding, this section does not apply in relation to the giving of evidence by a defendant, being evidence that the defendant:
(a)did an act the doing of which is a fact in issue; or
(b)had a state of mind the existence of which is a fact in issue.
(11)A reference in this section to doing an act includes a reference to failing to act.
(12)If a person has been given a certificate under a prescribed State or Territory provision in respect of evidence given by the person in a proceeding in a State or Territory court, the certificate has the same effect, in a proceeding to which this subsection applies, as if it had been given under this section.
(13)The following are prescribed State or Territory provisions for the purposes of subsection (12):
(a)section 128 of the Evidence Act 1995 of New South Wales;
(b)a provision of a law of a State or Territory declared by the regulations to be a prescribed State or Territory provision for the purposes of subsection (12).
(14)Subsection (12) applies to:
(a)a proceeding in relation to which this Act applies because of section 4; and
(b)a proceeding for an offence against a law of the Commonwealth or for the recovery of a civil penalty under a law of the Commonwealth, other than a proceeding referred to in paragraph (a).
Each mother asserts, that in the absence of the father seeking such a certificate to enable him to give evidence in these proceedings without the risk of that evidence being used in the criminal proceedings, the court can and should infer that the versions of events given by them, and in particular Ms Bell regarding the incident on 8 June 2020 can be accepted by the court.
This is a topic about which I gave the father’s counsel the opportunity to file written submissions at the conclusion of the oral hearing, and that opportunity was taken up. Having received those submissions the court’s attention has been drawn to the “fundamental rule of the common law” of the right of an accused to remain silent and that no “adverse inference can be drawn against an accused person” if they choose to exercise that right.[5]
[5] Petty & Maiden v The Queen (1991) 173 CLR 95 at 99.
The father’s concern appears to be that if he was granted a certificate under the Evidence Act, protecting any affidavit that he might file, that affidavit might none-the-less make its way to the prosecution and/or SAPOL for their use prior to any criminal trial.
I am not sure that I follow this submission, particularly when I couple the use of a certificate under the Evidence Act with section 121 of the Family Law Act, and what is commonly known as the Harman Undertaking.[6]
[6] Harman v Secretary of State for the Home Department [1983] 1 AC 280; Hearne v Street (2008) 235 CLR 125
In any event, the Full Court has recently considered this very topic in the decision of Langley & Tarelli and Anor (No. 2) [2020] FamCAFC 126 (hereafter referred to as “Langley”).
That decision was concerned with whether or not an order staying parenting proceedings should have been made pending the outcome of serious criminal charges faced by the father, and whether or not the trial Judge had prioritised the father’s right to silence over the welfare of the child.
In considering that issue, the Full Court had cause to revisit earlier Full Court decisions and in particular that of Re K (1994) FLC 92-461; [1994] FamCA 21 and Field & Kingston (2018) FLC 93-850; [2018] FamCAFC 145.
At paragraphs 31 and 32 of the Judgment in Langley, the Full Court set out:
[31] As the Full Court said in Re K at 80,765, where there is a genuine contest between the parties in relation to the welfare of the child, it is generally inappropriate for the Court to make no orders and adjourn the proceedings. And, further:
… The exercise by a party of his or her right of silence or privilege against self-incrimination in civil proceedings is a matter of decision by that party. Its exercise should not ordinarily determine whether the proceedings in this Court should continue. It would not usually be to the welfare of the child for disputed proceedings about guardianship, custody or access to be delayed for a significant period of time because that person chooses to exercise that right or privilege.
(Emphasis added)
[32] I agree, and in my opinion, the statement of principle emerging from that paragraph could not be clearer. Any other approach would have the effect that the welfare of children involved in family law proceedings would be held hostage to criminal justice processes and may have the effect of discouraging victims of crime, including family violence, from taking their complaints to police.
In Langley, much as the situation here, the father had given no explanation as to why a certificate under s128 of the Evidence Act, would not resolve the dilemma that the father found himself in. Albeit I acknowledge that when Counsel for the father in the present proceedings was challenged by the bench about this, the father’s right to silence was invoked as paramount and some explanation was proffered in the written submissions as to the fear of the use that any affidavit might be put to outside the criminal trial process.
As discussed by the Full Court in Langley [at 38], the father in these proceedings could have sought an order that he file an affidavit addressing the events of 8 June 2020, and consistent with the Full Court decision in Field & Kingston (2018) FLC 93-850; [2018] FamCAFC 145, this would have given rise to an application by him for a certificate to issue pursuant to s128 of the Evidence Act. In my view, if the father had done so, this would have occasioned no comprise to the father’s privilege against self-incrimination.
As a consequence of decisions taken at the father’s end, I accept that I do not have evidence which is crucial to my consideration of a series of significant events that go to the heart of matters that I am to take into account when determining what arrangements are in these children’s best interests.
Given the decisions to which I have just referred, I am left with the conclusion, that had he wanted to, the father could have sought a certificate so as to give more fulsome evidence in these proceedings about the very serious allegations that have been made against him, but that he has chosen not do so.
While it is the position of each mother that this alone is enough for the court to draw certain inferences against the father, the father’s failure to give evidence on oath in these proceedings is not the end of this issue. That is because I have the benefit of records produced by SAPOL in which it appears that the father did give a version to police of the events on 8 June 2020 when he was arrested. This is something which takes on some significance, as will be seen from my reasons that follow.
In addition, I have knowledge of the text message that the father sent on 8 September 2020 in which it appears that certain admissions were made by him to Ms Bell.
In my view all of these factors must be considered together, and they inform the approach that I am taking to the allegations made against the father at this stage, as will become clear from the discussion that follows.
The incident on 8 June 2020
With respect to the incident on 8 June 2020, Ms Fontaine deposed in her affidavit filed on 12 June 2020 that:
a)At the start of the school year Ms Bell’s son J commenced at H School, which is where X attends school. Due to J and X attending school together and their connection to the father, Ms Fontaine and Ms Bell became friends. [7]
b)On the long weekend commencing on 5 June 2020, X was in the care of the father.
c)At approximately 11.40am on 8 June 2020, she received a telephone call from Ms Bell. She returned Ms Bell’s telephone call and Ms Bell was crying and distressed. Ms Fontaine asked Ms Bell what had happened and she told her that the father “had hurt her and grabbed her and held her down and locked her in his room at Suburb N and when held down by Mr Fontaine, his stuff had come over her,” which Ms Fontaine had understood to mean that the father had ejaculated over Ms Bell.[8]
d)Ms Bell told Ms Fontaine that she was scared of the father and that he had taken Ms Bell to her home in Suburb O and had then left with X. [9]
e)Ms Fontaine and her partner Mr K then drove to Suburb O and took Ms Bell to the Suburb O Police Station at approximately 1:45pm where they stayed until approximately 3.30pm.[10]
f)At about 4:00pm, the Police went to the father’s home and arrested the father and returned X to Ms Fontaine out the front of the father’s home. [11]
[7] Mother’s affidavit filed 12 June 2020, paragraph 11.
[8] Mother affidavit filed 12 June 2020.
[9] Ibid paragraph 12.
[10] Ibid.
[11] Ibid paragraph 13.
In the father’s affidavit filed on 21 July 2020, the father acknowledged that there was an incident between him and Ms Bell on 8 June 2020, which resulted in him being charged and an interim intervention order being issued naming him as the defendant and Ms Bell, Y and J as protected persons.[12] Without particularising the allegations that had been made against him, the father “strongly” denied the allegations made by Ms Bell with respect to the incident on 8 June 2020 and said that he had instructed his solicitor to “vigorously contest” to have Y removed as a protected person on the interim intervention order. [13]
[12] Father’s Affidavit filed 21 July 2020. Paragraphs 33, 41.
[13] Ibid.
In his affidavit filed in support of his Application for parenting orders in relation to Y on 24 August 2020, the father again did not detail the allegations that had been made against him regarding Ms Bell, save and except to say:
“The allegations are that on the morning of 8 June 2020, after Ms Bell spent the night in my bed at my Suburb N home, I ejaculated on her without her consent.”[14]
[14] Father’s affidavit filed 24 August 2020, paragraph 53.
The father has not provided any further particulars with respect to the incident on 8 June 2020 and has objected to doing so on the grounds of his right to remain silent in the face of the criminal proceedings.
Ms Bell’s evidence regarding the incident on 8 June 2020, and where possible the father’s response, is that:
a)In about May 2020, Ms Bell told the father that she wanted to leave Adelaide and go to Queensland with J and Y for “a while.”[15] The father agrees that Ms Bell said this to him at that time.[16]
[15] Ms Bell’s affidavit filed 4 September 2020, paragraph 54.
[16] Father’s affidavit filed 24 August 2020, paragraph 51.
b)The father told Ms Bell that she could leave Adelaide for one year, but that Ms Bell had to sign a document. The document stipulated that Y, J, X and Ms Bell would stay with the father for one last weekend at his home. Ms Bell refused to sign the document and told the father that she would not stay with him for a whole weekend with the children.[17] The father made it clear in his affidavit filed 24 August 2020 that he did not consent to Ms Bell relocating to Queensland. However the father did not initially disclose the existence of the document that he had prepared. When he responded to Ms Bell’s affidavit on 8 October 2020, the father admitted that he had prepared such a document and asserted that it had been emailed to Ms Bell writing “Draft for Ms Bell to add”.[18]
[17] Ms Bell’s affidavit filed 4 September 2020, paragraph 55.
[18] Father’s affidavit filed 8 October 2020, paragraph 41.
c)The father then told Ms Bell that he had arranged for his family to come to his house for a bonfire on 7 June 2020 and he wanted the children to attend. Ms Bell says that she facilitated this arrangement as she felt “guilty” that the children would not be together for the family bonfire and agreed to go. [19] The father acknowledges that he arranged the bonfire and that Ms Bell agreed to attend.
[19] Ms Bell’s affidavit filed 4 September 2020, paragraphs 56 – 57.
d)After the bonfire, Ms Bell decided to stay at the father’s home as it was quite late by the time that everyone left, Y had fallen asleep in her cot and the father had been drinking all afternoon and Ms Bell did not want to leave X in his care while he was intoxicated.[20] The father denies that he had been drinking all night and asserts that he had consumed “5 beers over the course of the evening”. He asserts that he and his brothers blew into a breath analysis machine and that one of his brothers was the only one that blew over the limit, and his wife ended up driving them both home. The father asserts that Ms Bell also consumed alcohol that evening.[21]
[20] Ibid paragraph 57.
[21] Father’s affidavit filed 8 October 2020, paragraph 43.
e)The following morning on 8 June 2020, the father brought Y into the bedroom for Ms Bell to feed her. Once Y finished feeding, the father called for J and X to take her into the toy room. The father told Ms Bell that they needed to talk about the document that he had written.[22] The father declined to respond to this allegation of the mother and otherwise did not respond to what Ms Bell alleged took place thereafter.[23]
[22] Ms Bell’s affidavit filed on 4 September 2020, paragraph 58.
[23] Father’s affidavit filed 8 October 2020, paragraph 44.
f)Ms Bell asserts that the father said that if Ms Bell was going to leave with Y he needed closure, which Ms Bell understood to mean that he wanted to have sex with her. Ms Bell asserts that she “straight up” said “no” to having sex with the father and that the father then asked if he could just ‘cum’ on Ms Bell’s chest or face. Ms Bell says that she kept saying “no” and the father kept negotiating with Ms Bell to do other sexual acts. Ms Bell says that he children kept coming to the bedroom door, saying that they were hungry and couldn’t get the TV to work. Ms Bell told the children she would come and help. [24]
[24] Ms Bell’s affidavit filed on 4 September 2020, paragraph 59.
g)Ms Bell says that at one point she got up to leave and the father held her down so that she couldn’t. That in addition he pushed her to lay down on the bed and straddled her. She says that the father was straddling her on the bed facing her so she couldn’t move and that he was being persistent about ‘closure’. Ms Bell asserts that she continually said ‘no.’[25]
[25] Ibid paragraph 60.
h)Ms Bell asserts that the father held her wrists and pulled her up so that she was sitting and started taking her top off. She says that he told her that he was going to look at her and then she could have her top on. Ms Bell says she was shaking and the father ripped her top off.[26]
i)Ms Bell asserts the children came to the bedroom door and the father jumped off Ms Bell and ran to the door to stop the children from entering. While the father was at the door, Ms Bell says that she grabbed her top and attempted to put it back on, but when he returned to her the father grabbed it and threw it to the side. [27]
j)Ms Bell asserts the father pushed her down onto the bed. She says that she was screaming ‘stop’ and that the father managed to pull off her trousers and pants and throw them to the ground. She says that the father could not get his body fully on top of her as she was moving and kicking him, so he attempted to put his hands between her legs to touch her vagina.[28]
k)Ms Bell asserts that she was kicking and screaming in fear. She says that the father looked like he had a smile on his face and was enjoying her fighting him. Ms Bell says at this point she thought that the father would make her black out and that she would wake up and the father would have taken the children. She says that she then saw that the father had his hands in his pants and was masturbating. Ms Bell says that she told him to stop and that she was screaming so loudly that she was struggling to catch her breath. She says that the father was holding her down tightly.[29]
l)Ms Bell asserts that she then felt liquid all over her left side, as she had turned her body to the side to attempt to get away. She says that she knew that the father had ejaculated over her. She says that the children were in the room next door and would have been able to hear “the entire assault”.[30]
m)Ms Bell asserts that the father continued to hold her down. She says that she told the father that he needed to let go of her and he said “relax, calm down.” She asserts that the father told her to have a shower, but she knew that she should not do so as she wanted to report the father to the police. She says that she told the father that she wanted to shower at home and that she wanted to leave with the children. She asserts that the father told her that she could not leave until she signed the document that he had prepared. She says that she refused to do so, and that the father then asked her to write down that “he could have Y every Monday night”, which she refused to do.[31]
n)Ms Bell asserts that the father then told her that she could not leave with the children until the toy room was packed, and so she did this as quickly as possible. She says that the father then said to her “you won’t tell anyone will you?”, to which she responded “I’m not going to tell anyone as I don’t want to have to re live it.” She says that the father then agreed to take her home, and that he refused to let her drive, saying that she could only leave if he drove her home.[32]
o)Ms Bell asserts that when she arrived home with the father he was still agitated and shaking. She says that she told J to go inside and she picked up Y, went inside and closed the door. She asserts that the father thereafter was “picking at the garage door lock” trying to get into her home. She says that he then took X into the backyard of her home and was banging on the windows and doors “yelling to let him in”. She says that she was scared as she knew X was with the father and she could not help her.[33]
p)Ms Bell asserts that after attempting to get into the house numerous times, the father drove off with X. She says that she immediately rang Ms Fontaine and that Ms Fontaine and her partner agreed to come to her home immediately. Ms Bell says that she arranged for Y’s babysitter to attend and for J’s father to collect him and that thereafter she attended the Suburb O Police Station to report the incident.[34]
q)Ms Bell asserts that after making the report she decided that it was safest to stay with Ms Fontaine until she could find a more permanent solution.[35]
[26] Ibid paragraph 61.
[27]Ibid paragraph 62.
[28] Ibid paragraph 63.
[29] Ibid paragraph 64.
[30] Ibid paragraph 65.
[31] Ibid paragraph 66.
[32] Ibid paragraph 67.
[33] Ibid paragraph 68.
[34] Ibid paragraph 69.
[35] Ibid paragraph 70.
In addition to the affidavit material of the parties, I also have before me documents that were produced by SAPOL pursuant to the s 69ZW order made on 27 July 2020. These documents consist of the Facts of Charge for the offences with which the father was charged.
The Facts of Charge in relation to the charges of indecent assault and commit assault against Ms Bell states under the heading “VICTIM” as follows:
The victim is Ms Bell who is the ex-girlfriend of Mr Fontaine. They have one child together called Y who is 16 months old. She also has a son, J who is 5 years old from a previous relationship. Mr Fontaine has a 5 year old daughter, X from a previous relationship.
On the 7th of June 2020, Mr Fontaine had arranged his family to attend his address in [redacted] for a Bonfire. He wanted the children there so she took J (5y.o) and Y (16 months).
It got late and everyone had left. Y had fallen asleep in her cot and at this point she knew it was more than unlikely that she could have left. Mr Fontaine had been drinking all night so she believed it would be safer to leave in the morning.
All the children were in bed and Mr Fontaine told her he wanted to lie in bed with her so they could talk. She said, “Ok” but he was not allowed to touch her. She had moved herself right over the edge of the bed, they were both fully dressed and were just talking. Mr Fontaine tried to move closer and she said to him if he touched her she would leave. She told him she was going to sleep and that if he was staying, not to touch her.
On the morning of the 8th of June 2020, Ms Bell woke up and went to get Y who was crying but Mr Fontaine was already bringing her to the room. She breast fed Y and while doing so, Mr Fontaine touched the top of her breast, squeezing it, saying he was intrigued how the milk sprayed out. She pushed his hand away and told him it was making her feel uncomfortable. He stopped.
Once Y had finished he called for J and X to take Y to the toy room. Mr Fontaine started to say if she was going to leave with Y that he needed closure. She knew that he wanted to have sex with her and she said a straight out “No.”
Mr Fontaine told her that every long term relationship he has ever had that has ended he has been given closure except with his ex-wife, Ms Fontaine. She told him that she didn’t care and that she really wasn’t comfortable with it. Mr Fontaine then started to ask if he could just ‘cum’ on her chest or face.
She told him “no” she was not interested in any sexual acts with him and that she was only there to speak with him about Y. Mr Fontaine would not give in. Ms Bell believed that his reasoning on being so insistent with her was to get her pregnant so that she couldn’t leave.
She kept saying “no,” he kept negotiating with her to do other sexual acts. The kids kept coming to the door, knocking saying that they were hungry and couldn’t get the TV to work. Mr Fontaine told them not to come into the room. At one point she tried to get up to leave and he held her down so she couldn’t.
Because she had tried to leave he pushed her to lie down on the bed and straddled her. Mr Fontaine was now straddling her on the bed facing her so she couldn’t move. He was being persistent about ‘closure’ and she continually said “No”.
Mr Fontaine eventually said “Fine, can I just look at your body.” Mr Fontaine held her wrists and pulled her up so she was sitting, he was still straddling her and he started to take her top off, he told her he was going to look at her then she could have her top back on. At this point Ms Bell was shaking. Mr Fontaine ripped her top off.
She could hear the children at the bedroom door with Y because she was crying. It sounded like the children were about to come into the room regardless. Mr Fontaine jumped off her and ran to the door to stop the children.
As he was talking to the children at the door, Ms Bell quickly grabbed her top and attempted to put it back on before he got back but he got back as she had just put it on her head, he grabbed the top and threw it to the side.
Mr Fontaine pushed her back down onto the bed. Mr Fontaine sat to the left of her on the bed, he started shaking and was trying to hold her down with one hand, and his other hand was trying to pull at her pants. Mr Fontaine was using his body to hold her down.
She was screaming at him to “stop,” he managed to pull off her trousers and throw them to the ground. She was kicking so hard at him for him to stop. He couldn’t get his body fully on top of her because she was moving and kicking so he attempted to put his hand between my legs to touch my vagina.
Mr Fontaine was telling her to “settle down.” She was shaking and screaming as she was in so much fear. She thought he was going to hit her to stop her moving. She though he would make her “blackout” and that she would wake up that he would have gone with the kids.
Ms Bell knew no neighbours could hear her and the children didn’t have a phone. She continued to keep fighting him. It looked like Mr Fontaine had a smile on this face; it appeared he was enjoying her fighting him. She then saw that Mr Fontaine had his hands in his pants and was masturbating. She told him to stop and screamed so loud and didn’t stop screaming. She was struggling to catch her breathe. He was holding her down to tightly.
The next thing she felt liquid all over the left side as she had turned her whole body to the side to attempt to get away. She knew immediately that Mr Fontaine had ejaculated all over her. He continued to hold her down and she told him he needs to let go of her. Mr Fontaine was just saying “relax, calm down.”
The Facts of Charge also record under the heading “ACCUSED” as follows:
The accused is Mr Fontaine, born in 1982 of [redacted].
In 2017 he started a relationship with Ms Bell. In 2020, they moved into their new house in [redacted]. They have a daughter together, Y.
Since about February 2020, they have been separated. They would still see each other regularly because of the children, but there was no physical or sexual relationship since they separated.
On the 7th of June 2020, Ms Bell attended his address at [redacted] with Y and J as he had family and friends over for a bonfire. The friends and family left around 10 p.m. Ms Bell and the children stayed overnight. No one else stayed over. He had drunk a few beers throughout the evening. They went to sleep in the same bed.
The next morning they were talking in bed, as Ms Bell was saying she wanted to take the children and move to [redacted]. He asked her for sex. She said no and they didn’t have sex. The last time they had sex was in January.
During the conversation, Ms Bell got agitated. He denied physically assaulting her, pushing or hitting her. He stated he sat on top of her. Ms Bell was lying down on her back, on the bed. They were talking, and Ms Bell was alright. She then started to get annoyed and frustrated. He can’t recall if she asked him to get off. She didn’t try to physically push him off.
He stated that Ms Bell took her top off and he took her track pants off. He stated she was uneasy about it all. She was wearing underwear but no bra as she had been breastfeeding.
Ms Bell was displeased with his behaviour, she asked him to “Stop” and he didn’t listen to her. He stated he ejaculated at some point. He doesn’t know where his ejaculate went.
While I do not have any detailed particulars on oath from the father with respect to the incident on 8 June 2020, I do not consider that I can at this stage entirely ignore the information contained in the police material, and in particular the version of events that the father appears to have given police when he was arrested. It appears to me that at the point in time that he was arrested, the father did not assert his right to remain silent.
While it might be open at this stage to draw an inference against the father that he has declined to give evidence as the evidence would not have assisted him, I do not consider that I need to go that far at this stage.
In my view, as a consequence of the statement given to police by the father when he was arrested, and the text message that the father sent Ms Bell on 8 September 2020 as discussed later in these reasons, I have a proper foundation to accept on a preliminary basis that at the very least:
a)There was an incident on 8 June 2020, which was sexual in nature between the father and Ms Bell and which culminated in the father ejaculating likely on or near Ms Bell.
b)That at the time that he was arrested, the father had some understanding that Ms Bell had not wanted to engage in sexual relations with him that day.
c)That at some point during the incident Mr Fontaine understood that Ms Bell was “agitated”.
d)That at one point during the incident the father sat on top of Ms Bell.
I am also satisfied at this juncture that the children were in close proximity to the events that unfolded as and between the father and Ms Bell. However I cannot be sure as to what, if anything, they were exposed to and/or aware of during the incident.
I am also satisfied at this juncture to accept that the children were present in the aftermath of the incident, as they were present when the father drove to Ms Bell home, and X in particular was present when Ms Bell asserts that the father was attempting to gain entry to her home and otherwise attempting to gain Ms Bell’s attention.
Incident on 6 December 2019
The father was charged with an assault of Ms Bell’s son J in relation to an incident which occurred on 6 December 2019.
The father’s evidence regarding this incident is set out in his affidavit filed on 24 August 2020 as follows:
a)On Friday 6 December 2019, J was getting ready to attend his pre-school graduation. Ms Bell wanted J to wear shoes, but he wanted to wear thongs. Ms Bell became frustrated with J and J became angry and upset.[36]
b)The father offered to take J and get him ready. J’s face was covered in tears and nasal discharge so the father took him to the bathroom and wiped his face with a towel. J was still upset and did not want to keep still. [37]
c)On Tuesday 10 December 2019, Ms Bell informed the father that J had told a school teacher that the father had caused marks on his face and a report had been made to the Department for Child Protection. Ms Bell also informed the father that she was moving out of the family home with the children. [38]
[36] Father’s Affidavit filed on 24 August 2020, paragraph 34.
[37] Ibid.
[38] Father’s Affidavit filed on 24 August 2020, paragraph 36.
Ms Bell’s evidence is that:
a)On the night of J’s preschool graduation, she went into J’s room to get his clothes. She could hear J crying. She then heard a scream and ran into the bathroom, where J and the father were. J was standing and the father was kneeling in front of him, so they were face to face. J was screaming and looked terrified. [39]
b)Ms Bell immediately saw a scratch and red finger imprints on J’s cheek. She asked the father what had happened and the father said “I think the dog hurt him.” J was shaking his head.[40]
c)That night or the next morning, Ms Bell asked J what had happened and he told her that the father had hurt him.[41]
d)On 10 December 2020, Ms Bell called J’s counsellor and told her about the incident and the counsellor informed child protective services.[42]
[39] Ms Bell’s Affidavit filed on 4 September, paragraph 40.
[40] Ibid.
[41] Ibid paragraph 41.
[42] Ms Bell’s Affidavit filed on 4 September, paragraph 42.
The Facts of Charge in relation to the charge of assault against J record that:
a)A Vulnerable Witness Interview was conducted with J by Child Protection Services at P Medical Centre on Monday 3 August 2020.
b)During the interview, J disclosed that “he was in the bathroom with Mr Fontaine when he grabbed his cheek and pressed on it really hard. It caused a “big rash” on his cheek and made him cry. No one else was in the bathroom at the time.”[43]
c)Following their interview with J, the Police conducted a video interview with the father at the Suburb O Police Station on 14 August 2020. The father declined to answer questions during the interview after receiving advice from his barrister.
d)At the conclusion of the interview, the father was reported for assaulting J.[44]
[43] Ms Fontaine’s Affidavit filed on 11 September 2020, annexure 2, page 9.
[44] Ibid
On 6 November 2020, the father filed an Application in Case in which he sought to adduce further information with respect to the withdrawal of his assault charge against J. The Application was heard on 13 November 2020 and orders were made by consent for the Court to make enquiries with the embedded SAPOL officer in relation to the assault charge and for any response provided by the officer to be received by the Court as part of the reserved decision.
In response to the enquiries made by my chambers, the embedded SAPOL officer informed the Court on 17 November 2020 that:
On 01/11/2020 J’s mother MS BELL signed a 207B withdrawing the charge against MR FONTAINE. MS BELL stated the reason for the withdrawal was to protect her son from the potential of being further traumatised by court proceedings and cross-examination.
So far as this allegation is concerned, I am mindful that the police considered J’s disclosure in his record of interview to be such that criminal charges were warranted. However I also accept that this does not establish that the father did indeed assault J.
I also have the benefit of text exchanges between the father and Ms Bell in December 2019, and it appears from those messages that the father acknowledged that he may have been rough with J when attempting to wipe his face clean of “snot”.
While the charges in relation to J have been withdrawn, that does not absolve the father from the allegations made against him, and they will undoubtedly remain a feature of these proceedings if the matter proceeds to trial.
At this interim stage however, and in the absence of oral evidence, these are allegations that I am not able to determine. They are however serious allegations that I am equally unable to ignore at this early stage, and in my view it is necessary for me to balance the possibility that these allegations are true against the possibility that the allegations are without foundation.
If the allegations are ultimately made out I must have some concern as to the risk of physical abuse of the children by the father and in addition the father’s ability to among other things:
a)adequately parent and meet the needs of the children the subject of these proceedings; and
b)moderate his own behaviours and impulses.
Incident on 17 June 2020
The father was charged with one count of breaching a term of the interim intervention order and one count of breaching a term of his bail agreement on 17 June 2020.
The alleged breaches on 17 June 2020 arose as a consequence of a text message, that there does not appear to be a dispute that the father sent to Ms Bell at approximately 8.15am on 17 June 2020 just prior to a the father appearing in court with respect to the criminal charges. It does not appear that in all the material that has been provided to the court, that the court has been provided with the actual text of that message.
The father’s evidence however is that he sent the text message to Ms Bell “expressing his love for Y and reflecting on our life as a couple.”[45]
[45] Father’s Affidavit filed 21 July 2020, paragraph 42.
As a consequence of that text message, the father was arrested and charged with breaching the Intervention Order.
This is again not an allegation that I am able to make findings about at this interim stage.
However it would appear that the father acknowledges having sent the text messages, but he otherwise seeks to explain his actions as being nothing untoward.
Incident on 8 September 2020
The father was charged with a further count of breaching a term of the interim intervention order and another count of breaching a term of his bail agreement on 8 September 2020.
Again there appears to be no dispute that the father sent Ms Bell a text message on 8 September 2020, which read:
I’ll plead guilty on 1st of October. Just letting you know that means I will be in jail. Look after Y and X and J. There dad doesn’t deserve to be in jail.
During the hearing on 8 September 2020, the father’s counsel acknowledged that the father had sent the text message to Ms Bell and explained that the text message was sent by the father in similar circumstances to the previous text that he sent to Ms Bell on 17 June 2020, namely on the eve of a court hearing when the father was “extremely distressed.”
The father has not otherwise explained to the court for example:
a)What prompted him to send the message;
b)His personal circumstances at the time that he sent the message;
c)Whether there was any truth as to the content of the message and in particular whether his suggestion that he would plead guilty was an admission of guilt.
The timing and the content of the text message in my view raises a number of concerns and in particular:
a)There is some prospect that the message is indeed an admission of guilt on the father’s part;
b)There is some acknowledgement by the father that he will likely serve a custodial sentence if he is convicted; and
c)There is some acknowledgement by the father that Ms Bell is able to suitably and appropriately parent not only their child Y, but also the child X.
Having admitted sending the text message through his counsel, it is somewhat surprising that the father has not sought to give any further evidence that might have assisted the court in how to interpret the message.
Either way, at the very least the sending of the message, and the admission that it was sent, appears to be an admission by the father of a further breach of the terms of the intervention order.
Additional Allegations
Aside from these specific allegations, I am conscious that each Ms Fontaine and Ms Bell have made allegations of conduct on the father’s part that fits within the broad definition of family violence, including among other things coercive and controlling behaviours, and concerns in relation to the father’s sexual demands of them.
In addition, Ms Fontaine has raised concerns about certain injuries that X has presented with after time spending with the father.
At this interim stage however, these are not allegations that I am able to determine in the absence of oral evidence form the parties. Again however I need to find the balance between the possibility that there may be some basis to the allegations, as against the prospect that they are without foundation.
Comment in relation to alleged breaches of the Intervention Order & the father’s conduct generally
I am conscious that there are now two alleged breaches of the Intervention Order within a short compass of the making of that order.
Given that it appears that there is no dispute that the text messages were sent by the father, and while I do not know the circumstances of the father at the time that each text message was sent, it would appear on the face of it to suggest that the father at the very least has poor impulse control and/or an inability to regulate his emotions and abide by a court order.
I am also mindful that Ms Fontaine alleges that the father has not adhered to the terms of the orders made in this court in relation to handover, and in that regard:
a)Ms Fontaine alleges that the father has not remained in his motor vehicle at handover on 1 and 8 August 2020 as required by the orders of 27 July 2020; and
b)Mr Fontaine agrees that on at least one occasion (8 August 2020) he was not in his vehicle and instead was transferring items into his car some 30 metres away from the handover location.
While I am not able to make any findings about these alleged breaches of the orders of 27 July 2020, and at first blush they might seem to be of a trifling nature, in my view the allegations must be considered in the broader context of the alleged breaches of the Intervention Order and other allegations and information that I have before me.
In addition to the matters that I have already discussed in these reasons, I also have the benefit of copies of text message exchanges between the father and Ms Bell in the post separation period (as annexed to Ms Bell’s affidavit filed 6 October 2020). From those text exchanges it appears that the father had a tendency to repeatedly text Ms Bell in quick succession making requests and pleading his cause to her. It is Ms Bell’s position that she felt worn down by the father. I take this to mean that Ms Bell considered that the father had exercised coercive and controlling behaviour over her which she succumbed to. While I do not at this interim stage have the benefit of cross-examination, I have some concern that the text messages that I have seen, on their face appear to suggest that at the very least the father is quite intense and that he appeared to be making demands of Ms Bell that she was not receptive to.
I am also mindful that during submissions on 13 October 2020, when Ms Bell’s Counsel was addressing the court about the events on 8 June 2020, I had cause to interrupt submissions as I had observed the father looking intently at Ms Bell and Ms Fontaine, and it appeared that at least twice his solicitor asked the father to refrain from looking in that direction.
This interaction in my court room concerned me because, it took place in the context of a court hearing, when the father must have known that the eyes of the court were literally, not just figuratively upon him, and the father was unable to refrain from attempting to interact in some way with Ms Bell in particular.
As a consequence of all of these matters, I have some concerns about the father and:
a)His ability to regulate his emotions;
b)His insight into the consequences of his actions;
c)His ability to abide by any orders that I might make, and/or the terms of the Intervention Order protecting Ms Bell, Y and J.
Discussion
At this early stage in the proceedings, I do not consider that I am in a position to make any orders with respect to parental responsibility.
These proceedings have a certain difficulty about them, given that there are two children to different mothers and different circumstances must be taken into consideration for each child.
In relation to X, it is not lost on me that:
a)X’s parents have been separated for a period of no less than 4 years.
b)Until recent events, the arrangements for X appear to have proceeded over that extended period without incident, and presumably with a certain level of trust between the parents and an understanding that they each were able to properly meet X’s needs, given the arrangements the parents implemented voluntarily were very close to shared care.
c)Given the history of time spending, I would have to assume that the recent changes to the arrangements would have to be confusing for X, and in particular because she has not now seen the father since early September.
d)I do not know what impact (if any) the events of 8 June 2020 have had on X, including but not limited to when the incident was unfolding between the father and Ms Bell at his home, but also the aftermath, when it is alleged that X was outside Ms Bell’s home when the father was attempting to gain entry.
In relation to Y the different considerations include that:
a)Y is very young, and there does not appear to be any dispute that her primary attachment is with Ms Bell.
b)Since separation Y has lived primarily with the mother, and while she has spent time with the father, it appears to have often occurred at times when Ms Bell was present.
c)Any arrangement for Y will see her being separated from not only her primary carer, but also her sibling J.
d)There has been no time spending between Y and the father for a period in excess of 5 months.
e)Ms Bell in particular is said to be apprehensive about the time spending, and she considers that the court should take into account the need for any arrangement to have her comfort and support.
While I am cognisant that very different considerations apply for these children, I am concerned that very serious allegations have been made against the father. Those allegations are not just those relating to the events of 8 June 2020, and those related to J, but also those broader allegations of family violence that have otherwise been made by each mother against the father.
If some or all of those allegations are ultimately made out, then in my view I would undoubtedly have cause for concern that these children may well be at risk of harm in the father’s care, and in particular at risk emotionally, psychologically and physically.
Overlaying all of those factors, is that I cannot rule out the possibility that the father may well be convicted (possibly because he pleads guilty) of the various offences involving Ms Bell and that if convicted he may serve a custodial sentence.
While I do not make any findings at this stage beyond the comments that I have otherwise made when discussing the allegations, it is my view that the seriousness of the allegations, coupled with the alleged breaches that I have previously discussed and the father’s behaviour in the context of these proceedings, warrants a cautious approach to be taken to the father’s time spending arrangements.
Even had the father not proffered it, I would have formed the view that supervision was the most appropriate way to manage the risk factors when the children are in the father’s care.
That the father has come to this position voluntarily however is heartening, as it does suggest that he may have developed some insight and/or that he has the capacity to do so having received legal advice.
At this juncture I do not consider that overnight time spending is appropriate for either child:
a)Y is too young and vulnerable; and
b)X is also of a young age and she is also vulnerable, despite the fact that her parents reported positive time spending arrangements during their appointments with the family consultant.
All of the parents appear to suggest an arrangement that would see both children spending time with the father at the same time. In circumstances where it is agreed that the father spend supervised time with the children, I consider that it is appropriate that there be two supervisors present at all times that the father is spending time with both children.
That however leaves a practical problem, as supervision is in and of itself an onerous task, and the father’s brother and sister-in-law have their own lives and children. While I note that neither Ms Fontaine nor Ms Bell support the paternal grandparents assisting in supervision, I do not consider that there is a proper foundation to support that objection.
I equally do not accept that time spending take place in a neutral venue, as against somewhere that the children are familiar with, or the father and the supervisors consider appropriate from time-to-time. It is not clear to me why a play café or a contact service affords any better protection against risk in light of the supervision orders that both mother’s otherwise ask the court to make.
Turning to telephone communication between the father and X. At this juncture, and until I am satisfied that the father is able to abide by court orders, and able to regulate and control his emotions, I do not consider that I am in a position to support telephone communication; particularly as the orders that I propose making provide for X to spend a full day with the father each week.
I did not hear any submissions on behalf of Ms Fontaine in relation to X’s schooling and the injunctions sought by the father; beyond a submission that the orders sought were directed to child support issues.
At this stage I do not consider that I have enough information before me to form a view about this topic. I am however concerned that X’s stability be maintained, and one way to do so is to ensure that she continues to attend the same school if it is possible that she do so. However, I make it clear that if funding for that to occur becomes the source of conjecture between her parents, then I accept that the issue will require closer consideration and determination by the court.
Against that backdrop, I do not consider that the orders that the father has otherwise sought for the provision of information to both parents from the school and treating practitioners are controversial, and as a consequence they are orders that I am content to make at this juncture.
The parties otherwise appear to agree that the matter be progressed to a family assessment.
For all of these reasons I make those orders that appear at the commencement of my judgment.
I certify that the preceding one hundred and fifty (150) paragraphs are a true copy of the reasons for judgment of Judge Kari
Associate:
Date: 8 December 2020
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