FONTAINE & SEARS

[2017] FCCA 1244

FEDERAL CIRCUIT COURT OF AUSTRALIA

FONTAINE & SEARS [2017] FCCA 1244

Catchwords:
FAMILY LAW – Parenting – application for spend time arrangements to be suspended due to a change of circumstances – application allowed.

Legislation:

Family Law Act 1975 (Cth)

Rice v Asplund (1979) FLC 90-725

Applicant: MS FONTAINE

Respondent: MR SEARS

File Number: TVC 989 of 2016

Judgment of: Judge Young

Hearing date: 31 May 2017

Date of Last Submission: 31 May 2017

Delivered at: Darwin

Delivered on: 31 May 2017

REPRESENTATION

Counsel for the Applicant: Ms Wright appearing by telephone

Respondent appearing on his own behalf by telephone

ORDERS UNTIL FURTHER ORDER:

1. That all previous orders regarding the father’s time and communication with the children X born (omitted) 2011, Y born (omitted) 2013 and Z born (omitted) 2014 (“the children”) be suspended.

2. That the children do spend supervised time with the father in (omitted) at Catholic Care NT on such dates and times as Catholic Care NT may nominate each NT school holidays, up to 5 days per school holidays and for up to 4 hours per day.

3. That during the NT school terms, the children will communicate with the father by Facetime or by telephone call each Friday at 5pm NT time, with the father to send an SMS to the mother by 5pm each Thursday to confirm whether or not he will be able to communicate with the children on that Friday, and to nominate his choice of Facetime or a telephone call, and with the father to place the call and the mother to make the children available.

4. That during the time and communication that the children do spend with the father, the father will not cause or permit the children to spend any time with, nor have any communication with, Ms R.

5. That pursuant to s 68L(2) of the Family Law Act 1975, the interests of the children X born (omitted) 2011, Y born (omitted) 2013 and Z born (omitted) 2014 be independently represented by a lawyer and it is requested that Northern Territory Legal Aid Commission make arrangements as soon as practicable to secure that independent representation of the children's interests.

6. That forthwith upon appointment by the said Northern Territory Legal Aid Commission or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

7. That upon filing a Notice of Address for Service, the Independent Children’s Lawyer have leave to inspect and/or copy any material in accordance with Rule 15A.13 of the Federal Circuit Court Rules 2001 subpoenaed by the parties and released by the Court up to that date.

8. That within seven (7) days of notification of such appointment each party provide to the Independent Children’s Lawyer copies of all relevant documents relied upon by that party.

9. That the mother’s solicitors be permitted to provide the material produced pursuant to the subpoenas to the QLD Police and Child Safety Services to the NT Police and to SAPOL.

10. That leave is granted to the mother to issue a total of seven subpoenas in the within proceedings (including subpoenas already issued as at the date of this order) provided that the mother’s solicitor has advised the mother that any extra subpoenas (above the usual 5 subpoenas) should be issued.

11. That the Marshall of the Court is directed to refer the matter of the documents annexed as “S2” to the father’s affidavit filed 23 May 2017, to the Australian Federal Police for investigation.

12. That the father is at liberty to file further affidavit material regarding the issue of the documents that form annexure “S2” to his affidavit filed 23 May 2017.

13. That the father file and serve an Affidavit in respect to his relationship with Ms R.

14. That pursuant to section 62G(2) of the Family Law Act 1975, the parties and the children of the relationship X born (omitted) 2011, Y born (omitted) 2013 and Z born (omitted) 2014 attend upon a family consultant nominated by the Regional Coordinator Child Dispute Services of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 30 September 2017.

15. That the family report to deal with the following matters:

    (a)any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

    (b)the matters set out in sections 60CC, 61DA and 65DAA of the Family Law Act 1975; and

    (c)any other matters that the Family Consultant considers important to the welfare or best interests of the said children.

16. That the solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Case Coordinator Child Dispute Services.

17. That the parties are to telephone the Case Coordinator Children Dispute Services on (omitted) fourteen days prior to the date of the interview to confirm their attendance and in the event such confirmation is not received the interviews will be cancelled.

18. That upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

19. That unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

    (a)a Children’s Court;

    (b)a child protection authority;

    (c)a State or Territory legal aid authority; and

    (d)a convener of any legal dispute resolution conference.

NOTING:

A.At the date on which a copy of the Report is be provided to any of those identified above it may not have been admitted into evidence and may be untested or, if admitted, may form only one part of the evidence in the proceedings.

B.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

C.In the event a party to these proceedings objects to the release of the Family Report pursuant to order 19 herein, they shall write to the Chambers of Judge Young seeking that the matter be listed on short notice for their objection to be heard.

1. That unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

2. That upon filing a notice to inspect the parties’ legal representatives be at liberty to inspect and copy all documents produced pursuant to subpoena (SAVE & EXCEPT for those marked confidential).

3. That in the event any party (or the Independent Children’s Lawyer) in these proceedings wishes the family consultant to read any material produced pursuant to subpoena and any s.69ZW material then such documents shall be put before the Court by way of affidavit to be filed and served on or before 1 September 2017 as follows:

   (a)setting out short reasons for the inclusion of each set of documents, including reference to any current pleadings, and

   (b)annexing such material as is considered relevant, with

   (c)the affidavit to be paginated, indexed and exhibits tagged.

4. That the matter is adjourned to 13 November 2017 at 10.30am at the Federal Circuit Court, Alice Springs for further consideration.

5. That the parties have liberty to apply on providing notice in writing.

IT IS NOTED that publication of this judgment under the pseudonym Fontaine & Sears is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

TVC 989 of 2016

MS FONTAINE

Applicant

And

MR SEARS

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a parenting matter.  There are three children of the relationship who are aged 6, 4 and 2. In September 2016 orders were made by consent in the Townsville Registry of the Family Court about the children.  The orders provided for the children to live with the mother and spend time with the father.  Regrettably, the time spending arrangements broke down almost immediately, primarily I think because the parties had not given sufficient thought to the practicality of what had been put in place.  Arrangements were made for the parties to both drive long distances between Alice Springs and Adelaide and pass the children over at a midpoint.  For various reasons, that did not work.

3. I am not satisfied that that arrangement will continue to work.   I am not sure what arrangement is appropriate but I think some new arrangement is required.  The other issue that arises is that when the children ultimately went to spend time with their father, according to the father, the mother objected to the delivery of the children. He says he needed the assistance of the police in Alice Springs to ensure that the children were delivered to him at the appropriate time. 

4. He then took them to Adelaide for the month provided for in the orders.  During that month it appears that he was away from home for considerable periods.  He is an (occupation omitted).  The children were left, I am satisfied, for considerable periods in the care of a Ms R.  Ms R is the current partner of the father.  It appears from subpoenaed materials that Ms R has a history with the child welfare authorities in Queensland including having made allegations that her son, who was then six, was sexually abused by a friend of hers – a female friend, I understand – and the friend’s partner. 

5. There was an investigation by the child welfare authorities in Queensland which concluded there was no substance to those allegations and considered that the child had been coached or otherwise influenced to make false allegations.  The child welfare authorities substantiated, it would appear, a finding that the child, Ms R’s child, A, had been exposed to emotional abuse by her. 

6. That history is consistent with the history of Ms R’s proceedings in Queensland involving Mr T her then partner.  Various orders have been made in the Federal Circuit Court in Townsville and Brisbane involving Ms R and Mr T, including an order made on 31 January 2017, an order by consent, that A and other children of Ms R live with Mr T and that Ms R have supervised time with those children.  Those proceedings are ongoing in Queensland. 

7. The significance of that is that while the children were in Adelaide with their father, X made an allegation of sexual abuse involving Ms Fontaine’s adult brothers. That was investigated by the police and nothing was disclosed. Subsequently, in Alice Springs, X repeated that disclosure or allegation to her mother.  That matter is presently under the investigation by police in the Northern Territory or South Australia – it is not clear to me where exactly.  

8. The father’s material from that time, when a recovery order was sought by the mother and subsequently made by me, raises sexual abuse allegations against the mother and her present partner, specifically, an allegation that X disclosed to the father that the mother and her present partner, Mr B, touched X “all over her body” in a context that was clearly an insinuation, if not an allegation, of sexual assault.  The father in his material said that he had disclosed that to police, welfare authorities and a medical practitioner.  There is no evidence that that is so.  There has been no investigation of any allegation against Ms Fontaine and her present partner.  Nevertheless, the allegation has been raised.

9. Ms Wright, who appears as counsel for the mother, says that there is a somewhat disturbing similarity in the nature of the allegations regarding A, Ms R’s son, suggesting that the common factor is Ms R.  She says that there are real concerns about the influence of Ms R in the children’s lives, particularly if they are spending extended holiday time with their father in South Australia.  I think there is some substance in that submission. 

10. The concern is reinforced by some material that the father filed on the court portal on 23 May 2017 in preparation for this hearing.  In paragraph 5 of the father’s affidavit filed on that day he says:

    Ms Fontaine [the mother, Ms Fontaine] has stated that Ms R’s children are in the care of their father. This has recently changed by order of the Honourable Judge Coker in Townsville.  A true copy of Ms R’s orders are annexed.

11. What purport to be copies of orders are annexed to that affidavit.  The orders referred to are crude forgeries, it would appear.  I have checked the court’s records and no such orders were made in Townsville or anywhere else in the matter of Ms R & Mr T.   

12. The true situation is that the children remain in the care of their father, Mr T. That has not changed.  Mr Sears has said to me that he was simply relying on Ms R when he said that and he was relying on the accuracy of the orders that he said were provided to him by Ms R.  He says in substance that he has been misled by Ms R.  I do not have any reason to doubt that at the moment.  But that is something that we will have to wait for further investigation.  Needless to say, the fact of serious allegations of sexual abuse being made by the father, being made by a child in circumstances where Ms R is present, and on the father’s version, where forged documents are being provided to him by Ms R, give me no reason to trust Ms R. If what the father says is true, he has no reason either.    

13. However, I do not know who is telling the truth at the moment.  As I say, that will require investigation.  But such is the gravity of my concerns, I am satisfied that I should suspend the children’s time orders with their father and order supervised time in Alice Springs.  The father agrees to that on a temporary basis.  And in the meantime he will make his own inquiries. He will have to make his own assessment of the situation.  I will give him liberty to apply and file further affidavit material dealing with this subject.  I will not make an order that he do so.  I am conscious that the father ought not be obliged to incriminate himself.  I have warned him that he need not say anything about this matter if it may tend to incriminate him. 

14. What he has told me was made after I gave him that warning.  I will also order the transcript.  To summarise, I am satisfied, applying the principle in Rice & Asplund, that the issue of the time the children spend with the father needs to be reconsidered. 

15. I will adjourn the matter to 13 November 2017 at 10.30am in Alice Springs. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Young

Date:  9 June 2017