Fontaine & Fontaine (No 2)
[2023] FedCFamC1F 662
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fontaine & Fontaine (No 2) [2023] FedCFamC1F 662
File number(s): ADC 2502 of 2020 Judgment of: KARI J Date of judgment: 19 July 2023 Catchwords: FAMILY LAW – INTERIM HEARING – Ex Tempore reasons – Where final orders were made by consent Division: Division 1 First Instance Number of paragraphs: 13 Date of hearing: 19 July 2023 Place: Adelaide Counsel for the Applicant: Ms Ross Solicitor for the Applicant: Brian Deegan Lawyers Counsel for the First Respondent: Mr English Solicitor for the First Respondent: KD & Co Lawyers Solicitor for the Second Respondent: Dixon Gallasch Pty Ltd ORDERS
ADC 2502 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS FONTAINE
Applicant
AND: MR FONTAINE
First Respondent
MS BELL
Second Respondent
ORDER MADE BY:
KARI J
DATE OF ORDER:
19 JULY 2023
Amended pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 28 August 2023 – Order 4, 5, 6, 7, 8 & 9
THE COURT ORDERS THAT:
1.That all previous orders be discharged save and except for orders 2 and 10 made on 1 June 2022.
2.The Applicant Mother have sole parental responsibility for X (born 2013).
3.That X do live with her mother Ms Fontaine.
4.That the Applicant Mother do continue to enrol in and ensure attendance of X at H School unless the Respondent Father ceases payment of tuition fees for H School for more than one school term, UPON NOTING that the Respondent father continues to pay for the child’s school fees and agrees to continue to do so.
5. School for more than one school term, UPON NOTING that the Respondent father continues to pay for the child’s school fees and agrees to continue to do so.
6.5. That the Second Respondent Mother have sole parental responsibility for the child Y (born 2019).
7.6. That Y live with her mother, Ms Bell.
8.7. That forthwith, the parties do engage with Ms S and Ms T to commence the intake process for the purposes of the father’s supervised time spending pursuant to these orders.
9.8. That the parties will each do all such things to complete the said intake process in line with Ms S’s and Ms T’s instructions.
9.19. The father spend time with X and Y as follows:
9.29.1 Supervised time spending in accordance with orders 3 and 10 made on 1 June 2023 with currently booked supervised visits at U Contact Centre (V Street, Suburb W) to continue up until September 2023 save and except that the visit in July 2023 which is to be moved to the morning session;
9.39.2 That there be a further six supervised sessions, at U Contact Centre pursuant to orders 3 and 10 made on 1 June 2022 commencing in September 2023 and concluding in December 2023 with such visits to occur in the morning and be limited to 1.5 hours;
9.49.3 Commencing on 23 December 2023, the father’s time to be supervised by Ms S on the following conditions:
9.4.19.3.1 at times and places to be agreed between the parties and Ms S;
9.4.29.3.2 that there be staggered arrival and departure to ensure that the mothers are not brought into contact with the father;
9.4.39.3.3 the time to occur on a fortnightly basis; and
9.4.49.3.4 the time to be capped at 1.5 hours;
9.4.59.3.5 the father be solely responsible for engaging and paying for the fees.
10.In the event that Ms S is not available to supervise the father’s time spending for whatever reason, then Ms T act as supervisor on the same conditions as provided for in order 9.3, with the father to be responsible arranging for Ms T to act as supervisor on any and all such times when Ms S is not available.
11.It is a condition of the father’s time with the children that both children are present. If either child is unable to be present for whatever reason, the time will not proceed.
12.In the event that there are missed occasions of time spending pursuant to Order 9, that such make up time be provided at the earliest possible opportunity subject to the availability of Ms S or Ms T as the supervisor.
13.That the father be at liberty to bring members of his immediate family to such time spending at the discretion of the supervisors, being the paternal grandparents, the father’s brothers and the children’s cousins. UPON NOTING that the father will limit such inclusions to one or two of his family members at any one time.
14.That in the event the father is unable to afford to pay for ongoing private supervision at any time, then the father shall arrange with U Contact Centre the resumption of supervised time spending in accordance with orders 3 and 10 made on 1 June 2022 with such time spending to resume at the earliest available opportunity at the availability of the Centre AND ONLY if U Contact Centre is willing to facilitate the same.
15.The father be restrained and an injunction hereby granted restraining him from:
15.1Approaching or being within 200 metres of either of the mothers’ residences or places of employment.
15.2Approaching or being within 200 metres of H School or any venue at which X attends for the purposes of care, extracurricular and sporting activity.
15.3Contacting or communicating with the Applicant mother or the Second Respondent Mother save and except for communicating via U Contact Centre, Ms S or Ms T in relation to time spending.
15.4Contacting or communicating with X other than during time spending pursuant to these Orders.
16.That the father be at liberty to communicate with X’s school in relation to her progress and to be provided with copies of school reports, photos or other updates as would usually be provided to parents, at the father’s sole cost.
17.That the parties are required to provide a copy of these Orders to the children’s schools, Ms T and Ms S.
18.That all parenting proceedings otherwise be dismissed.
THE COURT FURTHER ORDERS:
19.That the Applicant Ms Fontaine be removed as a party to these proceedings.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Ex tempore reasons settled from transcript)KARI J
INTRODUCTION
These proceedings come before me in relation to the parenting arrangements for two children: X, born in 2013, and Y, born in 2019.
The proceedings commenced their life before me in Division 2 when I was a judge of that Court, when the applicant mother, who is the mother of X, commenced proceedings by filing an Initiating Application on 12 June 2020. There were separate proceedings commenced by Ms Bell, the second respondent, who is the mother of the child, Y, but those proceedings were ultimately combined with the proceedings commenced by the applicant.
BACKGROUND
The proceedings have a significant history before me, given the passage of just over three years duration. I will not repeat that history because it is well traversed by me in two written decisions that I have published: the first being Fontaine & Fontaine & Anor [2020] FCCA 3324 delivered on 8 December 2020 in Division 2 of the Court and the second being Fontaine & Fontaine [2022] FedCFamC1F 658 delivered on 1 June 2022 in Division 1 of this Court. And I am cognisant of the matters raised and discussed in those reasons which, essentially, are what has brought us to today.
As set out in those earlier reasons, the father is facing very serious criminal charges in relation to allegations of a sexual assault nature as in between himself and the second respondent. I am told today that those charges are unlikely to be heard before the middle of next year at the earliest. The father is due to be arraigned in relation to those charges.
Whatever the case may be, when I heard the matter in December of 2020 and when I delivered my reasons in June of 2022, I was of the firm view that until those proceedings and those criminal charges had resolved, the most appropriate protective mechanism to ensure the safety of the children and any risk that the father presents to them is through formal supervised time spending.
When the matter was before me earlier this year - and I think it was in March of this year, I indicated to the parties my concerns that the parenting aspect of the proceedings were lingering and abiding an outcome of the criminal charges. I raised with the parties my concern as to the willingness of the contact service to continue supervised time spending and I directed the parties to make enquiries as to alternative supervision arrangements.
While much of what has occurred in these proceedings has not been smooth sailing and the parties disagree on various aspects, it strikes me that the parties have come a very long way since the hearing in March of this year, such that the Court is now being invited to finalise the parenting proceedings. It must be said that the resolution, or the proposed resolution, of the matter today is to the mutual credit of each of the parents and they are to be commended for proposing a resolution of the matter today.
I now have before me a draft minute of order with amendments made by me and discussed with counsel during the course of the hearing. That proposed order has been signed by each of the parties and that signature is indicative of their consent as are the submissions now made by each of the parties' legal representatives in support of the making of those orders.
The proposed orders continue supervised time spending between the father and both children. That supervised time spending is to continue until the end of this year through a contact service and thereafter it is to move to private supervision by professionals. The order at paragraph 14 builds in the possibility that private supervision may not be able to be accommodated going forward if the father is unable to afford to continue paying the costs of that supervised time spending.
While I understand that the parties are willing to resume time spending at a contact service, the parties equally understand that time spending at a contact service may not be available to them because they have well and truly exhausted that resource, which is the reason why they are going to move away from that service. I say that because there is no guarantee that any service will be willing to resume the supervised time spending that the parties are willing to resume.
The parties understand that in inviting the Court to make orders today that this may well not be a finalisation for all time of the parenting arrangements for the children. The parties understand that subject to the resolution of the father's criminal charges, any one of them may bring an application inviting the Court to reconsider the parenting arrangements. While there is no guarantee as to what the Court might do if and when any such application is made, I make it clear to the parties that any such application will be determined on its merits at that time.
Having said all of that and cognisant of the very significant history of the matter, I have no difficulty in finalising the matter today as the parties have requested that I do. I am satisfied that the orders that the parties are inviting the Court to make are in the best interests of both children, X and Y, and, as I say, I commend the parties for reaching a resolution today.
I accordingly now make orders in terms of paragraphs 1 to 18 of the amended draft minute of order as signed by me today. That concludes that aspect of the matter.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 11 August 2023
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