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…
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- AGLC
- Fontaine and Fontaine and Anor [2020] FCCA 3324
- Case
- [2020] FCCA 3324
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the father should have supervised time with the children, and the implications of the father’s assertion of his right to remain silent regarding the alleged family violence incident that led to the charges and the intervention order. The father did not seek a certificate under s 128 of the *Evidence Act 1995* (Cth) in relation to his silence.
Kari J determined that the parties had mutually agreed that the father should spend supervised time with the children. The court noted the father's assertion of his right to remain silent concerning the allegations of family violence and the resulting intervention order. The judge applied principles of family law concerning the paramountcy of the child’s welfare and best interests, considering the allegations of family violence and the existing intervention order. The court acknowledged the father's right to remain silent but also considered the impact of this silence on the assessment of risk to the children.
The court made interim orders for supervised time between the father and the children.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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