FONTANO and FONTANO - [2022] FCWA 171

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: FONTANO and FONTANO [2022] FCWA 171
CORAM: SUTHERLAND CJ
HEARD: 14, 15, 16, 17, 18 MARCH 2022
DELIVERED : 17 AUGUST 2022
FILE NO/S: 2207 of 2018
BETWEEN: Mr FONTANO
Applicant
AND
Ms FONTANO
Respondent

Catchwords:

PROPERTY - treatment of total and permanent disability payments received by one party after separation - assessment of contributions and future needs - case turns on its own facts

INJUNCTIONS - ex-parte - to preserve total and permanent disability payments pending further order

CHILDREN - interim - schooling arrangements pending delivery of judgement in relation to parenting issues

Legislation:

Family Law Act 1975 (Cth) s 60B, s 60CA, s 60CC, s 75(2), s 79(4)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Ms M
Respondent	:	Ms N
Independent Children's Lawyer	:	Ms O

Solicitors:

Applicant	:	Law Firm A
Respondent	:	Law Firm B
Independent Children's Lawyer	:	Law Firm C

Case(s) referred to in decision(s):

Bilz & Breugelman [2013] FamCA 578
Eden & Eden-Proust [2011] FamCAFC 138
Falcken & Weule [2019] FamCAFC 140

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fontano and Fontano has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act1975 (Cth).

INTRODUCTION:

1[Mr Fontano] and [Ms Fontano] were unable to reach final agreement about: (1) parenting issues concerning their two young children, [Child A] and [Child B]; and (2) financial issues arising from the end of their marriage. These proceedings have a long, sad and increasingly complicated history.
2At the beginning of the trial, which started in March 2022, Ms Fontano sought final parenting orders, including that the children live with her. Mr Fontano faced a multitude of allegations made by Ms Fontano, including in relation to family violence and alcoholism. However, as the trial progressed, it quickly became apparent that those allegations had, by and large, been abandoned. Rather, by the end of the trial in March 2022, (prior to the reopening of the proceedings in relation to specific issues set out below), it appeared to be accepted by all parties that the deterioration in Ms Fontano's mental health in recent years had: (1) been catastrophic and devastating for the entire family; (2) significantly compromised Ms Fontano's ability to care for the children; and (3) over‑shadowed both the parenting and financial proceedings. Ms Fontano's counsel, [Ms N], conceded in her closing submissions that Mr Fontano had been doing a very good job since the children had moved into his primary care. On the other hand, in relation to Ms Fontano's live with application, Ms N submitted that: "the evidence spoke for itself", but the court should consider increasing Ms Fontano's time with the children.
3Aside from the issues surrounding Ms Fontano's mental health and her approach to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading FONTANO and FONTANO

Details

AGLC: FONTANO and FONTANO [2022] FCWA 171
Case: [2022] FCWA 171
Decision Date: 17 AUGUST 2022

CaseChat Overview and Summary

The case of FONTANO and FONTANO involved a dispute over property settlement and interim orders regarding children's schooling, following the separation of the parties. The matter was heard in the Family Court of Australia. The primary focus of the court was to determine how to treat total and permanent disability payments received by one party post-separation, assess financial contributions and future needs, and make interim arrangements for the children's schooling.

The legal issues before the court included whether the disability payments should be treated as part of the property pool and, if so, how they should be allocated. Additionally, the court needed to decide on the appropriate interim arrangements for the children's education while the parenting issues were being resolved. The court was also called upon to consider an ex-parte injunction to preserve the disability payments pending further orders.

In delivering its judgement, the court considered the unique facts of the case, particularly the nature of the disability payments and the parties' financial circumstances. The court held that the disability payments were not to be treated as part of the property pool, given their nature and the specific circumstances of the case. It found that the ex-parte injunction was appropriate to preserve the payments until the final orders were made. For the children's schooling, the court ordered interim arrangements to ensure the children's education was not disrupted while the final parenting judgement was being prepared.

The court made specific orders to preserve the disability payments and to establish interim schooling arrangements for the children. The final judgement detailed the court's reasoning and the specific terms of the orders, ensuring that both the financial and parenting issues were addressed in a manner suitable to the unique circumstances of the case.

Orders