Fontaine & Fontaine
[2022] FedCFamC1F 658
Federal Circuit and Family Court of Australia
(DIVISION 1)
Fontaine & Fontaine [2022] FedCFamC1F 658
File number(s): ADC 2502 of 2020 Judgment of: KARI J Date of judgment: 1 June 2022 Catchwords: FAMILY LAW – PARENTING – Interim hearing –Two children born of the same father but of different mothers – Where one of the children’s parenting arrangements is not in dispute – Where there has been no time-spent between the father and either child for over 12 months – Allegations of family violence between the parties – Where the Father is facing serious criminal charges - Where it is appropriate for time spending to occur at a children’s contact service - Where the Applicant asserts that the father is a risk to the child – Where supervised time-spending is ordered - costs reserved. Cases cited: Fontaine & Fontaine & Anor [2020] FCCA 3324 Division: Division 1 First Instance Number of paragraphs: 50 Date of hearing: 1 June 2022 Counsel for the Applicant: Ms Ross Solicitor for the Applicant: Brian Deegan Lawyers Counsel for the First Respondent: Mr Dillon Solicitor for the First Respondent: Cifuentes Lawyers Counsel for the Second Respondent: Ms Miller Solicitor for the Second Respondent: Debra Spizzo & Associates ORDERS
ADC 2502 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS FONTAINE
Applicant
AND: MR FONTAINE
Respondent
MS BELL
Intervener
order made by:
KARI J
DATE OF ORDER:
1 June 2022
THE COURT ORDERS THAT:
1.That paragraphs 3, 5, 6, 7 and 9(b) of the Orders dated 8 December 2020 be discharged in relation to the child X (born in 2013) (“the child”).
2.To the extent that it is necessary the parties enrol at the Suburb Q Children's Contact Service within 14 days.
3.That the father spend supervised time with the child at the Suburb O Children's Contact Service at times and dates to be allocated by the said service on a fortnightly basis with each occasion of time spending not to exceed 2 hours, NOTING that supervised time between the father and child will be transferred to and continue at the Suburb Q Children's Contact Service at times and dates to be allocated by the said service on a fortnightly basis with each occasion of time spending not to exceed 2 hours when that service is available.
4.That upon the completion of the first six (6) visits and thereafter at six (6) visit intervals (irrespective of which service these occur at) the first respondent’s solicitor will request an observation report (or if necessary a report from each service) to be provided to the applicant’s solicitor upon receipt.
5.That the first respondent file a copy of the observation report(s) annexed to an affidavit.
6.That the first respondent pay all costs associated with the contact service and any reports provided.
7.That until further order, the father be restrained and an injunction hereby granted restraining him from:
(a)Approaching or being within 200 metres of the mother’s residence or place of employment;
(b)Approaching or being within 200 metres of H School or any venue at which X attends for the purposes of care, extracurricular and sporting activity.
THE COURT FURTHER ORDERS:
Regarding X
8.That paragraphs 4, 5, 6 and 7 of the orders made on 8 December 2020 be discharged in relation to the child Y (born in 2019).
9.That to the extent that is necessary the father and the second respondent do enrol at the Suburb Q Children's Contact Service within 14 days.
10.That the father shall spend time with the child Y at the Suburb O Children's Contact Service to coincide the fathers time spending with the child X at times and on dates to be allocated by the said Service on a fortnightly basis with each occasion of time spending not to exceed 2 hours NOTING that the supervised time between the father and the children will be transferred to and continue at the Suburb Q Children's Contact Service at times and dates to be allocated by the said service on a fortnightly basis with each occasion of time spending not to exceed two hours when that service becomes available.
11.That the proceedings be adjourned for Mention only to 1 September 2022 at 2.15pm with such hearing to be conducted on a face to face basis with the parties to be in a position to advise the court as to whether the matter should be listed for a First Day Hearing and any other consequential orders to be made.
12.That the applicant’s costs of today be reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fontaine & Fontaine has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
KARI J
Introduction
This matter comes before me today in relation to two children: firstly, the child X, who is eight, and, secondly, the child Y, who is three years of age.
I do not propose to go over the detailed history of the matter, because I am conscious that I have previously delivered very lengthy reasons in this matter on 8 December 2020 (Fontaine & Fontaine & Anor [2020] FCCA 3324), when I was a Judge of the Federal Circuit Court of Australia. Those previous reasons set out a detailed background to how this litigation came about, and the issues in the proceedings. I have taken my previous reasons in this matter into account for present purposes.
It will also become obvious in a moment as to why I do not propose to go further into those reasons, given the events that have occurred since the making of those orders.
For present purposes, however, I am conscious that there are children born of the same father but of different mothers.
Arrangements in relation to the child X are not the subject of dispute today, and I have separately today made an order by consent as and between the father and X’s mother, the applicant, in relation to X’s arrangements providing for time spending at a contact service.
The arrangements for Y are however the subject of dispute.
Background to the present dispute
The orders for time spending at a contact service that X’s mother and the father have been able to agree are in my view, at this juncture in X’s best interests, and I am heartened that the parties have been able to agree an arrangement for her that would see X’s relationship with her father being preserved at some level moving forward.
I say the words “preserved at some level moving forward” because, so far as events that have occurred in the period of time since I made the orders on 8 December 2020, significantly, a number of issues have arisen. While I will address those issues in more detail shortly, the significant issue from the Court’s perspective is that time-spending in accordance with those orders was largely complied with from the making of the orders until approximately sometime in April of 2021.
Significantly, and importantly however, from April of 2021 until today, there has been no time-spending between the father and either of the children for what has now been over a year in duration.
So far as the child X is concerned, the parties agree that it is appropriate that, firstly, the relationship with the father be preserved in some fashion, and, secondly, that it is appropriate that the time-spending occur at a children’s contact service.
I am conscious that, when I delivered my reasons on 8 December 2020, I set out in detail why I considered supervised time-spending to be appropriate for both of the children so far as their time with the father is concerned.
From my perspective, and particularly given the hiatus of time since the making of those orders, the short period of their compliance, and the lengthy period of non-compliance with those orders, it is appropriate that the supervision continue for at least the foreseeable future, because a number of other issues have arisen in the intervening period which I will address shortly.
The situation so far as the child Y is concerned falls into a different category for a range of reasons. One of the reasons relates to Y’s young age; she having just very recently turned three years of age. In addition, Y’s mother is the alleged victim of very significant events which have led to serious criminal charges that are now faced by the father as identified in my previous reasons (one count each of aggravated indecent assault and aggravated assault relating to an incident which took place in mid-2020).
The charges that were pending in relation to the father when I dealt with the matter in December 2020 were ultimately dismissed at a hearing in the Magistrates Court in late 2021. As best as I am able to understand, it appears that the Magistrate determined to dismiss the pending charges in relation to the father, not because any findings had been made or evidence taken, but rather the delays at the prosecution’s end had been inordinate and unsatisfactory.
What I also understand is that, at the time that the criminal charges were formally dismissed the father had on foot before this Court an application filed on 9 November 2021 in relation to his time-spending with the children. I will come back to what occurred in the context of this litigation in a moment.
The Court now also understands that the criminal charges relating to the father have been re-laid. Significantly and importantly, the charges that have now been laid go beyond the events of mid-2020 which related to the original charges.
It now appears that the charges which have now been laid in relation to the incident of mid- 2020 are not dissimilar to those that were originally laid. There are, however, further charges of unlawful sexual intercourse which is alleged to have taken place as and between the father and the second respondent in 2018 and 2019.
These new charges are on any view, an escalation in the number of charges to which the father is now facing.
Returning to events that have transpired since the time that I made orders on 8 December 2020 in the context of this litigation, when I made the orders on 8 December 2020, included in the tranche of orders made that day were orders for a family assessment report to be undertaken. Those orders provided for such report to be released no later than 31 May 2021.
Ms R, a psychologist, was ultimately instructed to undertake that family assessment and prepare a report. I have the benefit of her report dated 6 July 2021. I will return to that report shortly.
As I indicated earlier, the orders that I made on 8 December 2020 for time-spending between the children and the father were complied with up until sometime in April of 2021.
For reasons which are not entirely clear to the Court, time-spending has not taken place between either child and the father in the intervening period for a period now in excess of 12 months.
The Court understands, from matters raised in broad terms by the father, that the reason that time-spending did not occur is because he was unable to comply with the Court’s orders that required two supervisors to be present at such times that both children were in his care. What is not clear to the Court is why time-spending, at least as and between the father and the child X, did not occur.
On any view, the events since early 2021, so far as maintaining a relationship between the children and the father, are unsatisfactory, because the very thing that the Court was concerned to avoid when reasons were delivered on 8 December 2020, that is, a hiatus of time-spending pending the resolution of the criminal charges, is the very thing which has now transpired in relation to both children.
The Court notes that the child X falls into a different category so far as time-spending with the father is concerned, given her age and given, until these proceedings commenced, she was spending frequent and regular time with the father.
The position so far as the child Y is concerned, however, falls into a different category.
Counsel for the mother of Y properly points out that, at the time that I delivered my reasons on 8 December 2020, there had been a hiatus of time-spending between Y and her father from the time of the incident that led to the criminal charges occurred in June of 2020. Pursuant to my orders, there was a resumption of time-spending between Y and her father, and that subsisted for a period of 12 months. There has however again now been a hiatus of time spending between Y and the father of in excess of 12 months. Effectively, the submission made on behalf of Ms Bell, Y’s mother, is that the father is now a stranger to Y because he has not complied with orders of this Court to spend time with her.
That is a submission which carries some force. Having said that, however, the Court remains concerned that these proceedings are likely to be before the Court for a very long time to come. It is not envisaged, and, indeed, no one today is asking the Court to make orders that would see this matter listed for trial such that any trial in this jurisdiction occur before such time that the criminal proceedings are resolved. I am told today that the earliest the criminal proceedings are likely to be heard is sometime in March of 2023 or beyond. That is not an insignificant delay to these matters moving forward in this jurisdiction.
The Court has the benefit, as I indicated, of Ms R’s report. On any view, the interactions that Ms R observed between the father and, to be fair, both children appeared positive and appropriate. It is, however, a very significant concern that, so far as the child Y is concerned, the Court does not have the benefit of any more recent observations of interaction. In particular, at the time that Ms R prepared her report, Y had not seen the father for only a short period of five weeks, not the period that we now find ourselves in in excess of 12 months. Again, that is a significant factor which has exercised the Court’s mind. The Court, however, is heartened that the interactions that were observed were positive and appropriate so far as both children are concerned.
Another additional matter that has arisen during the period of the adjournment is that the Court is now faced with some further allegations that have been made in the context of the father and his circumstances, the most significant of which appears to be an allegation disclosed by the child X to her mother that she observed an altercation between the father and the paternal grandfather at some stage during a visit in January of 2021.
The specific allegation is that, after the child X spent time with the father in early 2021, she returned to her mother “exhausted, withdrawn and quiet”. Ultimately, X disclosed the following day to her mother that the father and her grandfather, the paternal grandfather, had had a fight and that the father had threatened her grandfather, saying, “I will put a bullet in your throat, and you will die.” Her grandfather is reported to have responded by saying, “What did you say,” with the father responding, “Fucking shit.” X reported to her mother that her paternal grandmother and the child Y were present during the altercation. The mother sets out that X was visibly upset as she recounted the incident, and she was uncomfortable repeating the story to her mother and worried that her grandfather would be hurt by the father. The mother reports that X said to her, “See, Mum? Now Grandfather knows my dad’s mean.”
That is an allegation which the Court does not have the benefit of any evidence whatsoever on the father’s part. It is an allegation that was first raised in the affidavit of the applicant on 19 January 2022 and, despite the father having filed numerous documents since that time, including affidavit material, a financial statement, and an application in a proceeding, he has not seen fit to specifically respond to that allegation. The allegation is a serious one.
In addition to the father not responding to that allegation, there is no material before the Court from the paternal grandfather, the alleged victim of the threat, indicating his views as to whether or not that incident occurred. Equally, there is no affidavit from the paternal grandmother, who is said to have been present during the incident, despite the fact that she has filed an affidavit previously in these proceedings indicating her preparedness to continue supervising time spending, that affidavit being filed on 9 November 2021. Again, that is a matter of some significant concern to the Court.
The position of the parties
The positions of the parties today, so far as the child Y is concerned, is that the father promotes that there be time-spending between he and Y at a contact service either together with the child X or separately.
Y’s mother opposes that proposal of the father. Rather she says that there should be no time-spending between Y and the father pending trial and any determination that the Court might make at that juncture.
Y’s mother promotes this position because she asserts that because of the events that have transpired since the incident in June 2020, effectively, Y has not had a relationship with her father. Y’s mother also asserts that the hiatus of 12 months since any time was spent now puts Y in a position, particularly given her young age, where she is effectively having to be re-introduced to the father with whom she is likely to have no recollection. That, is a matter that has exercised the Court’s mind.
Discussion
The difficulties for the Court today are in a sense not dissimilar to those that were present in December 2020. The allegations and the charges the father is facing are certainly very serious ones, and it is not lost on the Court that Ms R recommends that, in the event that the father is convicted of any of those offences, then the reality is that, moving forward, the Court should be taking a very cautious approach with respect to the relationship between both children and the father. Her specific words are as follows:
Significant allegations of abuse made against [Mr Fontaine] are currently before the Magistrates Court. If those allegations are found to have substance or if the Federal Circuit Court finds [Mr Fontaine] to be a risk to any of the children as alleged, or if the Court finds there is substance to the allegations of abuse by either or both mothers, then the recommendations regarding care arrangements are specific and brief. Those findings would support [Ms Fontaine] having sole parental responsibility for [X] and [Ms Bell] having sole parental responsibility for [Y]. Further, with regard to contact with [Mr Fontaine], those findings would support a permanent situation of limited time-spending on a supervised basis, for example, once per month through a children’s contact centre, or always in the presence of family members.
The reason I make the point of highlighting that recommendation is that, in the opinion of Ms R, if the father is convicted of offences relating to Y’s mother, and/or if he is not, if the Court forms the view that he presents an unacceptable risk of harm to the children, then his relationship with the children is to be significantly limited and curtailed.
Importantly, however, if the Court finds itself in that position, Ms R does not recommend there be a severing of the relationship between either of the children and the father. Ms R clearly has a view that the relationship that the father has with each of the children has some value to each of the children and that it should continue.
While I accept the very strong, forceful and powerful submissions made on behalf of Y’s mother that the hiatus of time is a very significant factor, that is not the only factor to be considered in this matter today.
I have equally heard, considered and accept the submissions made on behalf of Y’s mother that the court is to have regard to the impact upon her if the relationship between Y and Mr Fontaine is to be maintained pending trial.
On this topic, the Court has before it a discharge summary from a hospital presentation when Y’s mother presented to hospital after taking her older child to school and then suffering what she asserts to have been a panic attack in late 2021. The record itself is slightly unhelpful as to exactly what the cause of presentation was and whether, indeed, it was a panic, anxiety, or some other form of dysregulation. The Court understands that the mother’s presenting symptoms on that occasion appeared to include intermittent sharp pain in the lower abdomen which gradually improved, together with feeling dizzy. The record indicates that, while the mother was in the emergency department, she appeared to have an anxiety attack which was managed with breathing techniques.
While I accept that that record may well indicate that the mother has suffered some form of anxiety and/or panic episode, and that she asserts that she is finding this process very stressful, again, while the Court is concerned as to the impact on her of the litigation and her ability to maintain the primary care of Y, that is not the only factor to be considered.
This matter, to be perfectly frank, so far as Y is concerned, is very finely balanced. At the end of the day, however, the Court’s overriding concern today remains the same as it was in December of 2020, namely, if the father is not convicted of any offence and/or if the Court does not ultimately come to a view that he presents an unacceptable risk to either of these children, then the opportunity for him to have continued his relationship, in this instance, with Y pending any determination in that regard, on the mother’s proposal today, will have been completely lost.
While it is understandable that Y’s mother has taken the view she has today, given the father’s actions and, frankly, his inability to properly explain to the Court why he took no steps to bring the matter back to Court sooner than 9 November 2021 – for which there is some significant criticism from the Court’s perspective – it is not the role of this Court to punish a parent who has behaved badly. Rather, the focus of the Court is to make orders which the Court considers to be in the child’s best interests.
At this juncture, Ms R’s recommendations that even if the Court considers that the father presents an unacceptable risk, there should be an ongoing but limited relationship between the father and both children are ones that at this interim stage of the proceedings cannot be overlooked.
For all of those reasons, I consider it appropriate for there to be time-spending between the father and Y at a children’s contact service in the same form as those orders which I have made in relation to the child X.
I also consider it appropriate that the time-spending occur with both children at the centre. The Court will derive some benefit from understanding how the father is able to manage both children in that setting, and, for that reason, it is appropriate that the time spending occur with both children present.
I have had regard and I am conscious that there is uncertainty moving forward as to what the father’s time-spending might ultimately look like pending trial, given my awareness that time at a contact service is not an endless piece of string. As I have previously indicated, I am unimpressed with the lack of information and candour on the father’s part as to why there were difficulties with the supervisors, why his father is no longer proposed to be a supervisor, and matters related to why the lack of availability of supervisors ultimately led to the hiatus of time-spending that has occurred. But that may well be an issue for another day.
For all of those reasons, so far as the child Y is concerned, I now make the following additional orders.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 1 September 2022
NOTE: These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to make the orally delivered reasons easy to read.