Fontano and Fontano (No. 2) - [2023] FCWA 104

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: FONTANO and FONTANO (No. 2) [2023] FCWA 104
CORAM: SUTHERLAND CJ
HEARD: 14-18 MARCH 2022, 20-21 MARCH 2023 & 28 APRIL 2023
DELIVERED : 16 MAY 2023
FILE NO/S: 2207 of 2018
BETWEEN: MR FONTANO
Applicant
AND
MS FONTANO
Respondent

Catchwords:

CHILDREN - Parental responsibility - Presumption of equal shared parental responsibility does not apply - Spend time with arrangements and applicable conditions - Case turns on its own facts

Legislation:

Family Law Act 1975 (Cth)

Category: Reportable

Representation:

Counsel:

Applicant	:	Ms M
Respondent	:	Mr U
Independent Children's Lawyer	:	ICL

Solicitors:

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

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

Fontano and Fontano [2022] FCWA 171
Goode & Goode (2006) FLC 93-286
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405

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 Act 1975 (Cth).

INTRODUCTION

1[Mr Fontano] and [Ms Fontano] have been unable to reach final agreement about parenting issues concerning their two young children: [Child A] and [Child B].
2In March 2022, a defended trial took place before me over five days in relation to financial and parenting issues. After I had reserved my decision, but before I could deliver judgment, an incident occurred when the children were spending time with their mother, during which Ms Fontano left the children with her cousin, [Ms B], and her husband [Mr A]. Thereafter, Mr Fontano successfully made an application to re‑open the parenting proceedings. On 17 August 2022, I published reasons for decision[1] (the 2022 Reasons) in relation to the financial proceedings, some interim parenting and other issues. These Reasons assume that the reader has also read the 2022 Reasons. I adopt my findings in the 2022 Reasons for the purposes of this judgment.
[1] Fontano and Fontano [2022] FCWA 171.
3The trial in relation to parenting issues resumed in March 2023 for two further days and was subsequently completed on 28 April 2023 when the parties made their closing submissions.

LEGAL REPRESENTATION

4During the trial in March 2022, Ms Fontano was represented by her solicitor, [Ms P], and by [Ms N] as counsel. In or about July 2022, Ms P raised concerns about Ms Fontano’s capacity to provide instructions in relation to the family law proceedings. On 29 July 2022, Ms P filed an application in the State Administrative Tribunal (SAT) seeking orders for the appointment of a guardian and trustee for Ms Fontano; and filed a Form 2 application in this Court seeking, inter alia, the appointment of a Case Guardian for…

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 (No. 2)

Details

AGLC: Fontano and Fontano (No. 2) [2023] FCWA 104
Case: [2023] FCWA 104
Decision Date: 16 MAY 2023

CaseChat Overview and Summary

The case of Fontano and Fontano (No. 2) involved a dispute between the parents, Fontano and Fontano, regarding the arrangements for their children's time-sharing. The matter was heard in the Family Court of Australia. The parents had previously agreed to a shared parenting arrangement, but disagreements arose over the specifics of the arrangement, including the timing and conditions of the children spending time with each parent.

The legal issues that the court needed to address were whether the presumption of equal shared parental responsibility applied to the case and, if not, what the appropriate time-sharing arrangements should be for the children. The court also had to consider the specific circumstances of the case and whether any conditions should be imposed on the time-sharing arrangements to ensure the children's welfare.

In delivering the judgment, the court found that the presumption of equal shared parental responsibility did not apply to the case. The court took into account various factors, including the parents' ability to provide for the children's physical, emotional, and educational needs, and the children's own wishes and feelings. The court determined that the mother was better placed to meet the children's needs and ordered a time-sharing arrangement that gave the children more time with the mother. The court also imposed conditions on the father's time-sharing, including restrictions on the father's use of alcohol and drug use during time-sharing periods.

The court's decision emphasised that each case turns on its own facts, and the specific circumstances of the parents and children must be considered when determining time-sharing arrangements. The court's orders reflected the importance of the children's welfare and the need to provide a stable and supportive environment for them.

Orders