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 Ms Fontano. Ms P subsequently did not pursue the Form 2 application in this Court and ceased acting for Ms Fontano in mid-August 2022. Thereafter, Ms Fontano was very briefly represented by another solicitor, but was otherwise unrepresented in the family law proceedings until late December 2022, when her current solicitor, [Mr U], commenced acting (by which time the SAT application had been dismissed). Although Mr U ceased acting in February 2023, he recommenced acting on Ms Fontano’s behalf just prior to the resumption of the trial; and appeared as counsel for Ms Fontano at the resumed trial.

5Mr Fontano was represented by his solicitor and [Ms M] as counsel at the trial in March 2022 and at the resumed trial. The Independent Children’s Lawyer, (ICL) continued to represent the children, including at the trial in March 2022 and at the resumed trial.

ORDERS SOUGHT BY EACH PARTY

6Mr Fontano sought final orders in the terms of his Minute filed on 20 February 2023, and as subsequently amended by him in closing submissions.[2] In summary, the key orders sought by Mr Fontano were that:

a) He have sole parental responsibility for the children.

b) The children live with him.

c) Prior to Ms Fontano spending time with the children, she: (1) undertake and provide him with a clean hair strand drug test for a nine-month period; and (2) arrange for the father to be provided with a report from her treating psychiatrist and her treating psychologist addressing specific issues. If there were no adverse findings, then Ms Fontano do spend time with the children supervised by a professional agency, on a gradually increasing basis. If, after a specified period, there were no adverse findings noted by the supervision agency, then Ms Fontano do spend unsupervised time with the children each Sunday from 10am until 4pm, and any further times as the parties agreed.

[2] Refer to the Schedule – Comparison of Final Orders Sought handed up by the father’s senior counsel on 28 April 2023, in which the father does not pursue the orders originally sought by him at paragraphs [22] and [23] of his Minute.

7Mr Fontano also sought various other specific parenting orders, including in relation to handovers, special occasions, the children’s involvement in schooling and extra-curricular activities, information sharing, telephone communications, travel, and injunctions.

8By the time of the resumed trial, Ms Fontano had abandoned her application that the children live with her; effectively conceding that the children should continue to live with Mr Fontano.

9Ms Fontano sought final orders in the terms of her Minute of Final Orders Sought filed on 24 February 2023. In summary, the key orders sought by Ms Fontano were as follows:

a) The parties have equal shared parental responsibility for the children.

b) The mother spend supervised time with the children on eight occasions over approximately four weeks and, subject to the supervisor’s report not containing any adverse findings, the children then spend time with the mother each weekend from after school (or 3pm on a non-school day) on Friday to before school (or 9am on a non-school day).

10Ms Fontano also sought specific parenting orders including in relation to special occasion days, telephone communications, handovers, injunctions, the children’s involvement in schooling and extra‑curricular activities, information sharing, and the parties’ communications with each other.

11The ICL’s position was as set out in her Minute handed up to the Court on 21 March 2023. In summary, the key orders sought by the ICL were as follows:

a) The father have sole parental responsibility for the children on the basis that he be required to consult with the mother before making a final decision.

b) The children live with the father.

c) The children spend time with the mother, supervised by a professional agency, for four hours each Sunday for a period of three months. Thereafter, over time, the mother’s time with the children gradually increase and/or move to being unsupervised, subject to certain specified conditions, including: (1) there being no adverse findings by the supervision agency in relation to the mother’s time; (2) the mother completing a 3 month hair strand test and producing clear test results; and (3) the mother providing regular reports from her treating psychiatrist and psychologist addressing specific issues. Subject to the mother meeting the conditions, then ultimately the children spend time with the mother each week from after school Friday until 5pm Sunday, together with additional time on school holidays and on specified special occasions.

12The ICL’s Minute also contained specific provisions in relation to the mother having communications with the children, handover arrangements, special occasions and holidays, the management of the mother’s mental health issues, exchange of health and educational information concerning the children, the parties’ attendance at school events and the children’s extra-curricular activities, the parties’ communications and information sharing with each other, travel, passports, and injunctions.

THE EVIDENCE

13On 24 February 2023 I made procedural orders, inter alia, that the resumed trial proceed on the basis that: (1) Ms Fontano and the ICL have liberty to cross-examine Mr Fontano, Mr A and Ms B in relation to matters relevant to the remaining parenting proceedings that have arisen since 18 March 2022; and (2) Mr Fontano and the ICL have liberty to cross-examine Ms Fontano in relation to matters relevant to the remaining parenting proceedings that have arisen since 18 March 2022.

14In addition to the documents relied upon by the parties for the trial in March 2022 (as set out in the 2022 Reasons at [6] – [9] inclusive), for the purposes of the resumed trial: (1) Mr Fontano relied upon his affidavits filed on 23 June 2022, 19 September 2022, and 28 February 2023, together with the affidavits of Mr A and Ms B both filed on 24 June 2022; (2) Ms Fontano relied upon her affidavit filed on 10 March 2023; and (3) the ICL issued a subpoena to [Dr A], Ms Fontano’s treating psychiatrist, inter alia, to give further evidence.[3]

[3] During closing submissions, senior counsel for the father also handed up a Schedule – Comparison of Final Orders Sought by the parties and the ICL; and the mother’s counsel handed up an outline of submissions.

15 Mr Fontano was cross-examined by Ms N and the ICL during the trial in March 2022; and he was also cross-examined by Mr U, and briefly by the ICL, during the resumed trial in March 2023.

16In the lead-up to the trial in March 2022, Mr Fontano faced a multitude of allegations made by Ms Fontano, including in relation to family violence and alcoholism. As I set out in the 2022 Reasons, Mr Fontano was not cross-examined (and was effectively unchallenged) on much of his affidavit evidence. Whilst Mr Fontano was cross‑examined in relation to some of Ms Fontano’s allegations, including that throughout the relationship, he consumed alcohol to excess and was financially controlling, it was noticeable that Mr Fontano was not cross-examined about many other serious allegations made by Ms Fontano, including that: (1) Mr Fontano subjected her to “verbal, physical and psychological abuse”; (2) Mr Fontano frequently physically abused her throughout the relationship during arguments, including physically grabbing her and putting her in a restraint, and pinning her down during sex and grabbing her around the neck; and (3) Mr Fontano made threats Ms Fontano throughout their relationship, including to “take all”, leave her with nothing and use the legal system against her.[4]

[4] Mother’s Papers for the Judge, page 12.

17In the 2022 Reasons at [2], I observed that: “… 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 … 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 [Mr 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.”[5]

[5] 2022 Reasons at [2].

18In the 2022 Reasons at [11] I stated that: “While giving his oral evidence, [Mr Fontano] impressed as being polite, calm, and thoughtful, but also as being quite worn down by his family’s circumstances. He responded to questions in an open and transparent manner. He was a good historian, with a clear and consistent recollection of relevant events. [Mr Fontano] also readily made concessions against interest, including acknowledging [Ms Fontano]’s positive attributes and that the children loved her. In summary, I considered that [Mr Fontano] was an impressive witness, who gave his evidence honestly and without embellishment”.[6]

[6] 2022 Reasons at [11].

19It was evident that by the time of the resumed trial, Ms Fontano had some regrets about the way her case was conducted at the trial in March 2022, including the decision to largely abandon her allegations that Mr Fontano perpetrated family violence against her. It would be fair to say that Mr U’s cross-examination of Mr Fontano at the resumed trial was far more hostile than the cross-examination Mr Fontano experienced in the trial in March 2022. I considered that Mr Fontano continued to appear very worn down by his family’s circumstances. However, I considered that Mr Fontano also appeared to be fed up and irritated with the ongoing litigation. For example, at times during his cross‑examination by Mr U, Mr Fontano was somewhat cryptic and unhelpful in his responses. Nevertheless, I considered that overall, Mr Fontano was an impressive witness, who gave his evidence honestly and without embellishment.

Mr A and Ms B

20Mr A and Ms B were both cross-examined during the resumed trial by Mr U and the ICL. I considered that Mr A and Ms B were both straightforward, candid, and helpful in giving their evidence, and I accept their evidence in relation to the events on 17 June 2022 at the [Apartment Complex A], when they unexpectedly bumped into Ms Fontano and the children at approximately 9pm. In particular: I accept that:

a) Ms Fontano appeared to Mr A and Ms B to be very disorganised, including being unable to check into the complex with the children for the night for some reason and not being able to find her credit cards.

b) The children had not had any dinner and when Ms Fontano sent the children to the bar to order a drink, the hotel staff unsurprisingly declined to serve them.

c) Ms Fontano’s conversation with Mr A and Ms B became increasingly bizarre, Mr A and Ms B became increasingly concerned about Ms Fontano’s mental health state, including the possibility that she may be drug affected, and were very concerned about the children's wellbeing with Ms Fontano.

d) At their suggestion, Mr A and Ms B took the children to their home (getting them a takeaway dinner on the way). Subsequently, arrangements were made for the children to be returned to Mr Fontano’s care that night.

The father’s remaining witnesses

21In the 2022 Reasons, at [12] to [16] inclusive, I set out my findings in relation to the father’s remaining witnesses, some of whom were required for cross-examination at the trial in March 2022, and some of whom were not. None of the father’s remaining witnesses were required to give further evidence at the resumed trial. I make the following additional observations about the remaining witnesses, insofar as they are relevant to the remaining parenting proceedings.

22In relation to the paternal grandfather, [Mr D]: I also accept his evidence, much of which was effectively unchallenged, including: (1) his observations of Ms Fontano’s deteriorating behaviour from early 2016 onwards; (2) his observations (and concerns) about the children’s general presentation, health and wellbeing in the months after separation when they were living primarily with Ms Fontano; (3) his observations of the children since they commenced living primarily with Mr Fontano; and (4) Ms Fontano sending him various abusive and/or derogatory text messages in the years since the parties’ final separation, copies of which were also annexed to his affidavit.[7]

[7] Affidavit of Mr D filed 7 October 2019, at Annexure B.

23In relation to Mr D’s wife, [Ms E]: I also accept her evidence, much of which was unchallenged, including: (1) her observations of the deteriorating relationship between her and Mr D on the one hand, and Ms Fontano on the other hand, from early 2016 onwards; (2) her observations of Ms Fontano’s aggressive and abusive behaviour towards Mr Fontano and other family members at various handovers after separation; (3) Child A’s disclosure to her on 18 March 2019 about seeing “mummy’s friend” smashing furniture and some of the children’s toys in [Property A] in [Suburb E]; and (4) her observations of the children after separation.

24In relation to those witnesses who were not cross-examined at the trial in March 2022:

a) I accept the evidence of the paternal aunt, [Ms F], including in relation to: (1) the incident she observed at the swimming pool on 23 September 2017, during which the children became very distressed and cried after Ms Fontano was verbally aggressive and abusive to Mr Fontano; and (2) her positive observations of the children since they have primarily lived with Ms Fontano.

b) I accept the maternal grandmother, [Ms G]’s evidence in relation to the following matters: (1) aside from Ms Fontano, Ms G has two other children: [Ms H] (who also gave evidence in support of Mr Fontano’s case) and [Mr Q], who is a diagnosed schizophrenic; (2) her observations of Ms Fontano’s deteriorating mental health from early 2016 onwards; (3) the significant deterioration in her own relationship with Ms Fontano after the parties’ separation, including Ms G receiving numerous aggressive and abusive text messages from Ms Fontano from time to time; and (4) her ongoing positive relationships with Mr Fontano and the two children.

c) I accept the evidence of the maternal aunt, Ms H, in relation to: (1) her observations of Ms Fontano over time, including Ms Fontano being verbally aggressive and abusive to her during handovers that she attended; (2) a bizarre series of text messages that her husband received from Ms Fontano in the early hours of the morning of 24 August 2019, copies of which were annexed to her affidavit; and (3) her ongoing positive relationships with Mr Fontano and the two children.

The mother

25 Ms Fontano was extensively cross-examined by Ms M and by the ICL during the March 2022 trial; and she was also cross-examined again by both counsel during the resumed trial in March 2023. In the 2022 Reasons at [17] and [18], I set out my findings in relation to Ms Fontano’s evidence, including that: (1) her presentation under cross‑examination was consistent with her diagnosis of Attention Deficit Hyperactivity Disorder (ADHD); (2) Ms Fontano’s evidence was subjective, inconsistent and at times unhelpful to her own case; and (3) I was satisfied that I should be cautious in accepting aspects of her evidence. Ms Fontano’s presentation at the resumed trial was entirely consistent with her presentation at the trial in March 2022, and with her ADHD diagnosis. I was satisfied that: (1) Ms Fontano’s evidence continued to be subjective, inconsistent and at times unhelpful to her own case; (2) her responses to some questions were bizarre; and (3) I should be very cautious in accepting any of her evidence, unless it was uncontroversial.

26In the 2022 Reasons, at [19], I set out my findings in relation to Ms Fontano’s remaining witness, [Mr I]. Mr I was not required to give further evidence at the resumed trial. I make the following additional observations about Mr I, insofar as they are relevant to the remaining parenting proceedings. I accept his evidence that:

a) He and his ex-wife have three children together (two of whom are now adults). He has a good relationship with his children, his ex‑wife has never stopped him from seeing his children and he has never been required to spend time with them on a supervised basis.

b) He formerly served in the army, currently receives an army pension and is otherwise currently unemployed.

c) He suffers from PTSD and has undergone treatment for this condition. He has seen a psychiatrist in the past but has not needed any ongoing treatment for the past couple of years and is no longer on any medication.

d) He has historic criminal records in Country A and State E for minor offences. He also has a more recent criminal record in Western Australia, including convictions in 2021 for two counts of possessing a prohibited [weapon], for which he was fined.

e) He stays with Ms Fontano at her home on a regular basis, including until approximately midnight on the nights when the children are staying at the home. He is involved in activities with the children on weekends they are staying with Ms Fontano, including taking them to the beach and playing sports in the park. The children have also met some of his children, and engaged in activities together, such as going to the beach and the park and playing Lego together.

f) At times he and Ms Fontano have had serious arguments with each other, including on one occasion in November 2021 when both he and Ms Fontano called the police for assistance after Ms Fontano locked him out of the house and refused to return his phone and other belongings to him. He denied that he has threatened Ms Fontano during arguments or physically injured her. He usually tries to walk away from Ms Fontano if he thinks the argument is becoming heated.

g) He was formerly a friend of Ms Fontano’s brother Mr Q. However, they were no longer friends after being involved in a serious physical fight with each other at the home of a mutual friend, that resulted in both he and Mr Q needing treatment in hospital.[8]

The non-family witnesses

[8] Mr I’s evidence was that he required surgery and was in hospital for approximately 7 or 8 days. While in ED, Mr I observed that Mr Q was also receiving medical treatment, but he was unaware whether Mr Q was subsequently admitted to hospital.

27In the 2022 Reasons at [20] and [21] I set out my findings in relation to the non-family witnesses, including that they were each very helpful and considered in giving their evidence and I had no hesitation in accepting their evidence. [Ms L] and [Ms K] were not required to give further evidence at the resumed trial. On the other hand, Dr A was again cross-examined by all three counsel.

28In relation to Dr A, in the 2022 Reasons at [21] I stated that: “I accept [Dr A]'s evidence that he has been [Ms Fontano]’s treating psychiatrist since August 2017. As such, he provided various medical reports to support [Ms Fontano]’s TPD claims. He has diagnosed [Ms Fontano] with (1) adjustment disorder with mixed anxiety and depressed mood; and (2) ADHD - Predominantly Inattentive. Although [Ms Fontano] was high functioning, [Dr A] opined that she has had attentional symptoms, including poor concentration and planning difficulties, and tended to messiness and disorganisation. [Ms Fontano]’s ability to compensate for these attentional issues was detrimentally impacted by various factors, such as when [Ms Fontano] was dealing with more complex situations (rather than simple situations), or was under significant stress, or was highly distressed. [Dr A] opined that a key aspect in [Ms Fontano]’s case was that she felt intense distress due to her sense of being controlled by others and "invalidation" around the legal processes that have followed the breakdown of the parties' marriage and their separation. He also opined that [Ms Fontano] tended to ruminate about issues and that she found it difficult to "move on".[9]

[9] 2022 Reasons at [21].

29In relation to the resumed trial, I considered that Dr A continued to be helpful and considered, insofar as he could be, given: (1) his limited involvement with Ms Fontano as her treating therapist after the March 2022 trial; and (2) his limited knowledge (and at times, incorrect understanding) of Ms Fontano’s circumstances since the March 2022 trial.

30I make the following additional comments in relation to Dr A’s evidence:

a) Whilst I accept Dr A’s evidence that Ms Fontano’s mental health is best addressed by a “resolution of the Family Court matters and improved access to her children” and that resolution of the pending legal matters to Ms Fontano’s satisfaction may result in Ms Fontano needing little treatment for ongoing emotional dysregulation, stress and distress,[10] with the greatest respect to Dr A and Ms Fontano, my task is to make orders that are in the children’s best interests, having regard to the various factors set out in s 60CC of the Family Law Act 1975 (Cth), not orders which either Dr A and/or Ms Fontano may perceive as being in her best interests.

[10] Refer to Dr A’s report dated 25 August 2021, at paragraphs [8] and [10].

b) To the extent, if any, that Dr A maintained that he had no concerns for Ms Fontano’s capacity to care for the children,[11] I am satisfied that Ms Fontano had a very limited understanding of events “on the ground” from which to form that opinion. For example, Dr A conceded under cross-examination by Ms M that: (1) he did not know when the children commenced living primarily with Mr Fontano; (2) he was unaware of any concerns about the state of Ms Fontano’s home until reading Ms K’s subsequent report; (3) he was unaware of the concerns of School B about the children’s presentation when they were living with Ms Fontano until reading Ms K’s subsequent report; and (4) he had no idea whether Ms Fontano was telling him the truth about various matters.

[11] Refer to Dr A’s report dated 25 August 2021, at paragraph [9].

c) I accept Dr A’s further evidence that: (1) Ms Fontano chose not to attend and/or make regular appointments with him after early May 2022 and he only recommenced seeing Ms Fontano in January 2023; and (2) Dr A was not unduly concerned about the gap in treatment, as Ms Fontano had told him in or about April 2022 that she was seeing her psychologist, [Mr S], on a weekly basis. However, I am satisfied that Ms Fontano’s information to Dr A was incorrect and that she did not attend on Mr S again after the end of March 2022.

d) I accept Dr A’s evidence that in relation to Ms Fontano’s decision not to take all of her prescribed medications in 2022 as prescribed, Dr A’s understanding from Ms Fontano was that her financial circumstances were such that she could not afford the costs of the scripts. Having regard to Ms Fontano’s access to substantial funds in 2022, I am satisfied Dr A’s understanding in this regard was also mistaken.

e) I accept Dr A’s evidence that Ms Fontano chose not to undertake a standard drug screen test requested by Dr A in or about mid‑2022, albeit Dr A conceded he would not be surprised if Ms Fontano simply got confused and/or forgot that she needed to take the drug screen test. Although Ms Fontano denied any substance misuse at her appointment with Dr A in January 2023, he was “cautious” about her denial in this regard and refused to prescribe her with any more stimulant medications for her ADHD.

f) I accept Dr A’s evidence that his ability to express a view about Ms Fontano’s functioning for the purposes of the SAT proceedings was limited, as his appointments with Ms Fontano ceased after 3 May 2022 and did not recommence until January 2023 (by which time the SAT proceedings had been dismissed).

g) I accept Dr A’s evidence that his primary diagnosis of Ms Fontano remains adjustment disorder and ADHD, although Ms Fontano has additionally suffered from an increase in depressive symptoms since March 2022.

h) I accept Dr A’s evidence that he did not tell Ms Fontano at their recent appointment that he no longer needed to see her on an ongoing basis (as Ms Fontano asserted under cross-examination in March 2023). Rather, he told Ms Fontano that she needed regular treatment (and to that extent, he expected to see her every couple of months). However, Dr A also told Ms Fontano that regular psychological treatment was more important in her case than regular psychiatric treatment.

i) I accept Dr A’s evidence that he considered it likely to be counter-productive to Ms Fontano’s ongoing therapy if he had to provide ongoing reports to Mr Fontano about Ms Fontano. Whilst he was not comfortable about disclosing the content / detail of his appointments with Ms Fontano, he was prepared to provide Mr Fontano with “attendance reports”.

31I make the following additional observations about the evidence of Ms L and Ms K, insofar as they are relevant to the remaining parenting proceedings.

32I accept Ms L’s evidence that:

a) She is a very experienced primary school teacher and has also held various educational leadership/managerial positions, including until approximately 2019, as the Deputy Head of School B: the school formerly attended by the two children.

b) When the children lived with Ms Fontano, they appeared to be unkempt and dishevelled when at school (such as unbathed, with unbrushed hair, wearing dirty clothes and not in the correct uniform), and were often tired, hungry, and unwell with colds. The children were often late to school, or simply did not attend. Child B was still on milk bottles and had not progressed to eating solids.

c) On two occasions, Ms L made mandatory reports to the Department of Communities, the first because of the school’s concerns about the children appearing unkempt and hungry in the mother’s care, and the second after Child A made disclosures about various men staying at her mother’s home, and drug and alcohol abuse in her mother’s home.

d) By contrast, after the children commenced living with Mr Fontano, they appeared clean, in the correct uniform, well rested and adequately fed.

33I accept Ms K’s evidence, as contained in her report, that:

a) She is a clinical and forensic psychologist and was appointed as the second single expert witness in the matter, after the first single expert witness was suspended from practice (for matters that were entirely unrelated to this case).

b) Mr Fontano engaged in the assessment process in a polite manner but appeared to be both fatigued and distressed by the issues underpinning his application to the court. At times he became emotional and upset, particularly when referring to allegations that Ms Fontano had made about him (that he was abusive and controlling) and distressed at what Ms Fontano might have been experiencing as her mental health declined. Mr Fontano described Ms Fontano’s behaviour as her mental health declined as being frightening; and he also reported being deeply concerned for the impact this was having on the children.

c) On the other hand, Ms Fontano presented as initially cautious and guarded in the assessment process, but nevertheless was polite and accommodating. Ms K opined that Ms Fontano’s communication style as both very detailed and tangential, including excessive information about Mr Fontano and other family members, but very little information about herself. Although Ms Fontano was able to identify the various mental health providers she had engaged with and gave an accurate account of her diagnoses by Dr A, Ms K was unable to get any sense of how Ms Fontano experienced her mental health issues, as she frequently diverted to a discussion of Mr Fontano’s behaviour. Eventually, and while quite distressed, Ms Fontano commented that she experienced “stress, anxiety, distraught”.

d) Ms K opined that Child A and Child B both appeared to be happy and developmentally on track. Ms K conducted home visits with the children at both Mr Fontano’s and Ms Fontano’s homes. There were some unusual elements to the visit at Ms Fontano’s home, including Ms Fontano going off to her room to have a shower shortly after Ms K arrived, and parts of the house being very cluttered with belongings (albeit the children appeared unfazed by the state of the house). Ms K was so concerned about the state of the house that it raised the possibility in her mind that Ms Fontano may also have issues with “hoarding”, albeit she acknowledged that Ms Fontano appeared to be repainting / redecorating some rooms.

e) In addition to the disadvantages of the long commute that the children had to attend School B, Ms K expressed some concern at the level of weekend activities the children engaged in when with Ms Fontano. She opined that the children needed time to wind down, engage in unstructured play as well as structured activities; and that if the children continued to live with Mr Fontano, then they should attend school in the local area and reduce their extracurricular activities.

f) Ms K opined that it was difficult to accept the validity of Ms Fontano’s (very serious) allegations about Mr Fontano, given that the children appeared happy and well in his care and the school had not reported any concerns for the children’s care since they commenced living with Mr Fontano. As I have earlier identified, Ms Fontano effectively abandoned many of her allegations about Mr Fontano during the March 2022 trial.

g) On the other hand, Ms K opined that it was likely that the children’s health and educational needs were not adequately met when they were in Ms Fontano’s care. Further there was evidence to suggest that Ms Fontano had invited many different men into her home, including when the children were there. Some of these men created situations of concern, including bringing a firearm to Ms Fontano’s home. Further the children had been exposed to Ms Fontano’s verbally aggressive and abusive behaviour to Mr Fontano and other family members. Overall, Ms K opined that Ms Fontano was unable to create a predictable, measured, and safe lifestyle and environment for the children. This would impede the children’s health, education, and psychological and emotional development. Ms K was also concerned for the children’s safety, given Ms Fontano’s lack of judgment in relation to who she brings into the children’s lives, without consideration of the risks to the children.

h) Ms K opined that Mr Fontano was able to recognise and provide for the children’s needs. They had been living with Mr Fontano since 2018 and were healthy and happy children. On the other hand, Ms Fontano was less consistent in her ability to care for the children and meet their needs. Ms K also raised concerns about Ms Fontano’s ability to be attuned, sensitive and responsive to the children’s needs and the detrimental impact this may have on the children.

i) Ms K opined that changing the children’s living circumstances would compromise their wellbeing. If the children lived full time with Ms Fontano, then the responsibilities of caring for the children and the school routine may exceed Ms Fontano’s capacity to parent well. Ms K also raised concerns about Ms Fontano’s ability to regulate her own triggers and emotions in such circumstances.

j) Ms K opined that the children should continue to live with Mr Fontano, given that he had been able to provide the children with a safe, predictable, and loving home environment that has well‑supported their needs. She also opined that the children should continue to spend time with Ms Fontano as she currently did – that is, primarily on weekends, as this arrangement enabled Ms Fontano to parent at her best (and not have the added pressure of the school routine or additional time). If the children continued to live primarily with Mr Fontano, then it was imperative that they be enrolled to attend at a school local to Mr Fontano’s home. This would reduce the burden of the long commute on the children’s daily routine and enable the children to establish a local social network (and, for example, attend play dates with classmates after school). Ms K also recommended that the children should have the opportunity to spend at least one weekend a month with Mr Fontano.

34I also accept Ms K’s oral evidence at the trial in March 2022 that:

a) The more that Mr Fontano“withdrew” from Ms Fontano, for example, in limiting his direct communications with her after separation, the more that Ms Fontano perceived his withdrawal as being controlling and invalidating of her, and then escalated her aggressive behaviours towards him in response. Going forward, both parties were likely to experience ongoing difficulties and distress in relation to their communications with each other. Although not ideal, the “Our Family Wizard” App appeared to be the best option going forward for the parties to manage their communications with each other.

b) If orders were made permitting Mr Fontano to obtain information from Ms Fontano’s treating health providers, then Ms K was concerned that Ms Fontano may find the arrangement so intrusive that she stops seeking treatment. Instead, Ms K opined that the only feedback, if any, Mr Fontano should receive is that Ms Fontano was attending her scheduled appointments.

FACTUAL BACKGROUND

Introduction

35Given the concessions made by Ms Fontano through her counsel during closing submissions in March 2022 and following the resumed trial in relation to the parenting issues generally, and the reality that much of the evidence of Mr Fontano, his witnesses, and the non-family witnesses was either unchallenged or not significantly disputed, I do not intend to provide a detailed exposition of the background facts to this matter. Aside from my findings in relation to the evidence of the parties and the witnesses which are set out earlier in this judgment and in the 2022 Reasons, I set out the following background to provide some context to my discussion in relation to the parenting issues later in this judgment.

36Mr Fontano was born in December 1974 and Ms Fontano was born in November 1975. The parties commenced cohabitation in December 2007 and married on November 2012. Child A was born in May 2014, followed by Child B in June 2015. After the birth of Child A, Mr Fontano was the primary income earner and Ms Fontano was the primary homemaker and parent. As Ms Fontano’s mental health deteriorated, Mr Fontano became increasingly responsible for the homemaking / parenting duties, including attending to the household chores and grocery shopping. In August 2017, the parties separated on a final basis.

37Mr Fontano readily conceded that he and Ms Fontano both drank alcohol socially during their relationship and they also used illicit drugs on a recreational basis. Mr Fontano also conceded that as Ms Fontano’s mental health deteriorated, he struggled to cope with her changed behaviour and the detrimental impact it had on their family, and that for a short time (before and after the parties’ final separation), he consumed alcohol to excess as a coping mechanism. Although Ms Fontano alleged that throughout their relationship, Mr Fontano subjected her to family violence and that he abused alcohol and illicit drugs, I am not persuaded that this was the case. On the other hand, I am satisfied that after Ms Fontano’s mental health deteriorated in late 2015, she did subject Mr Fontano to persistent, ongoing family violence (and exposed the children to that family violence), including denigrating Mr Fontano to other parents and school staff at the children’s former school, yelling and screaming at Mr Fontano, verbally abusing him, and sending him multiple abusive / harassing messages.

Parenting arrangements after separation and family law litigation is commenced

38After separation in August 2017, Ms Fontano remained in the former matrimonial home in Property A and the children and Mr Fontano stayed with Ms G for two weeks. From September 2017, the children lived with Ms Fontano and spent time with Mr Fontano each weekend. In December 2017, the parties reached an agreement for the children to live with Ms Fontano and spend three nights per fortnight with Mr Fontano, and equal time during holidays. Mr Fontano continued to live at Ms G’s home until approximately March / April 2018, when he obtained separate accommodation in Suburb A, which was close to his own extended family members’ homes.

39Mr Fontano commenced the parenting proceedings in March 2018. I do not intend to provide a detailed summary of the proceedings, but instead simply highlight the key events and interim orders made. On 10 May 2018, interim orders were made for the children to live with Ms Fontano and spend time with Mr Fontano each weekend, subject to him having satisfactory accommodation. On 30 May 2018, interim orders were then made for the children to live with Mr Fontano from Monday to Friday and with Ms Fontano from Friday until Monday. In April 2019, after ongoing issues with Ms Fontano not getting the children to school on time or at all on Mondays, the Court made further interim orders for the children to live with Mr Fontano and spend time with Ms Fontano each week from Friday until Sunday afternoon.[12] The April 2019 interim parenting orders remained in effect as at the trial in March 2022.

[12] Refer to the orders of 12 April 2019.

40In January 2020, Ms Fontano lodged a claim under her TPD insurance policies. In late 2021, the claim was accepted, and Ms Fontano received a total of $2,271,674 into her superannuation accounts. Notwithstanding that the TPD claims were paid out, Ms Fontano is also separately entitled to continue to receive her income protection insurance payments until she turns 65 years old.

The March 2022 trial

41Shortly prior to trial in March 2022, Mr Fontano underwent hair analysis drug testing for the detection of alcohol and produced a clear test result.[13] On the other hand, shortly prior to trial (and again on the first day of the trial), Ms Fontano was requested to undergo hair analysis drug testing for the detection of illicit drugs but refused to do so.

[13] Exhibit A1.

42At the conclusion of the trial on 18 March 2022, I made various interim parenting orders, including:

a) That Mr Fontano have liberty to enrol the children in School A, as from the commencement of Term 2, 2022.

b) That both parties be restrained by injunction from (1) consuming alcohol, over the counter medications and prescribed medications to excess; or (2) using any illicit substance, for 24 hours prior to and during any time the children are in their care.

c) In relation to the children spending time with Ms Fontano during school holidays.

Events after the trial in March 2022

43I accept Mr Fontano’s evidence that after the trial in March 2022, Ms Fontano’s communications with him and her behaviour became increasingly chaotic.

44I accept Ms Fontano’s evidence that after the trial in March 2022, she chose to “have a rest” from her mental health treatment regime, including not taking some and/or all her medications as prescribed, not continuing her appointments with her treating psychologist, Mr S, and not continuing her appointments with Dr A. Her evidence in this regard was consistent with Dr A’s evidence and the subpoenaed material in evidence before me. I am satisfied that Ms Fontano did not attend any further appointments with Mr Lopresti after late March 2022 and she did not attend any further appointments with Dr A after early May 2022, albeit she had some email communications with him in or about June / July 2022. During the resumed trial, some issues were raised about the possibility that Ms Fontano was misusing her prescription medication in 2022 and/or that she chose not to engage with her therapists to avoid being assessed in the context of the SAT proceedings. However, based on the available evidence, I am unable to make any findings about these issues.

45Between April 2022 and July 2022, Ms Fontano withdrew a total of $882,665 from her superannuation and effectively went on a massive spending spree. By the end of October 2022, Ms Fontano had spent approximately $500,000 of these funds,[14] including on but not limited to:

a) Staying at hotels and resorts for extended periods of time between June 2022 and October 2022 (including simultaneously staying at a hotel in the city and at a resort on the coast at the same time for approximately two weeks in June/July).

b) Purchasing a new motor vehicle and musical instruments.

c) Shopping at various stores.

d) Making payments to Mr I and other men, including the man previously involved in bringing a firearm to Ms Fontano’s home.

[14] Father’s affidavit filed 28 February 2023 at [85] – [86].

46During the resumed trial, Ms Fontano was cross-examined, inter alia, about why she chose to stay at hotels and resorts for several months, rather than at Property A. Some of Ms Fontano’s responses, including about her beliefs about a male acquaintance who periodically attended at her home and parked his car at the local shopping centre, were frankly bizarre.

47Ms Fontano maintained that she regretted having wasted as much money as she did. However, she explained her actions as being a distraction from thinking about the trial in March 2022, the change of school and the ongoing legal proceedings, and because she was missing the children. Ms Fontano appeared not to consider the possibility that her decision making and behaviour from March 2022 onwards were detrimentally impacted by her decision to “have a rest’ from her mental health treatment regime for several months.

48Ms Fontano specifically denied that her behaviour after March 2022 was in any way related to illicit substance use. Ms Fontano’s denial would have carried more weight if she had complied with the various requests / orders to undertake drug tests in 2022 and produced clear test results. Although Ms Fontano eventually did undertake a drug test in 2023, which was clear in relation to illicit drug use, the test was limited to the previous three months and so did not cover the relevant period from March 2022 onwards.

49I consider it highly likely that after March 2022, Ms Fontano’s decision making and her behaviour deteriorated significantly due to her decision to “have a rest” from her mental health treatment regime for several months. Based on the available evidence, I am unable to make any finding as to whether Ms Fontano’s situation was also aggravated by substance misuse.

50I am satisfied that Ms Fontano resumed her appointments with Dr A in January 2023 and had her first appointment with her new psychologist, [Ms D], in early March 2023.

51At the time of the resumed trial, the children continued to live with Mr Fontano and were not spending any time with Ms Fontano, albeit they were having regular communications with her.

PARENTING PROCEEDINGS – APPLICABLE LAW

52These proceedings are determined under Part VII of the Family Law Act1975 (Cth) (the Act). In reaching my decision I will be guided by the objects of that Part and the principles underlining those objects. Section 60B sets out the objects and the principles underlying them. The Full Court in Goode & Goode made clear that when a parenting order is sought, whether it be final or interim, the starting point is the application of a presumption that it is in the best interests of the child that the child’s parents have equal shared parental responsibility, subject to the qualifications set out in the relevant section.[15]

[15] Goode & Goode (2006) FLC 93-286.

53Section 61DA of the Act provides as follows:

(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

(b) family violence.

(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

54In determining the outcome of parenting matters, I must, pursuant to s 60CA of the Act, consider the best interests of the child as the paramount consideration. In determining what is in the child’s best interests I must consider the matters set out in s 60CC of the Act. These proceedings commenced on or after 7 June 2012. Accordingly, s 60CC(2A) of the Act provides that in applying the primary considerations, I am to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence. The definitions of abuse and family violence have also been considerably widened.

55 I now turn to a consideration of the relevant factors as required by the legislation. Where I do not refer to a factor, it is because I consider that it is not relevant in this case.

PRIMARY CONSIDERATIONS

The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

56Although Ms Fontano alleged that throughout their relationship, Mr Fontano subjected her to family violence and that he abused alcohol and illicit drugs, I am not persuaded that this was the case and again observe that Ms Fontano largely abandoned her allegations in this regard during the trial in March 2022. In closing submissions in March 2022, Ms N conceded that Mr Fontano had done a very good job with the children since they had come into his care in 2018. By the time of the resumed trial, Ms Fontano abandoned her application that the children live primarily with her and simply sought to spend time with the children (initially on a supervised basis). I also accept the evidence of Ms K that the children appeared happy and well in Mr Fontano’s care and the school had not reported any concerns for the children’s care since they commenced living with Mr Fontano. Mr Fontano undertook a hair strand drug analysis test for the detection of alcohol shortly before the trial commenced and produced a clear test result. In short, I am satisfied that the children are not at risk of harm in Mr Fontano’s care.

57In the 2022 Reasons at [26] I said that: “I am satisfied that since Ms Fontano’s mental health deteriorated in late 2015, Ms Fontano has subjected Mr Fontano to persistent, ongoing family violence (and exposed the children to that family violence), including but not limited to denigrating Mr Fontano to other parents and staff at School B. I also accept Ms L’s evidence that at various times, the School B’s kindergarten and primary school staff members, including Ms L herself, had significant concerns about Ms Fontano’s behaviour at school, including attending at the school unannounced and/or in a heightened and/or aggressive state, arguing with other parents and/or staff, and discussing inappropriate matters with other parents in front of children. Ms L became so concerned about Ms Fontano’s aggressive behaviour escalating that she sought advice from the school's Legal and Compliance Office about the school's lockdown procedures.”[16]

[16] 2022 Reasons at [26].

58I am also satisfied that since Ms Fontano’s mental health deteriorated in late 2015:

a) Ms Fontano has demonstrated a lack of judgment in relation to who she brought into the children’s lives, without consideration of the risks to the children, for example: in permitting her former partner [Mr V] to stay in her home after only knowing him for a very short time in early 2019.

b) Ms Fontano was unable to adequately meet the children’s health and educational needs when they were in her full-time care, placing them at serious risk of neglect. This included being unable to ensure that the children were clean, properly fed, had their health needs attended to, and attended school on a consistent basis. Since the children started living primarily with Mr Fontano, Ms Fontano has continued to struggle to adequately meet the children’s needs when spending time with the children, for example: being unable to consistently get the children to school on Monday mornings.

c) In short, I am satisfied that having regard to her mental health diagnoses, particularly ADHD, Ms Fontano has been unable to create a predictable, measured, and safe lifestyle and environment for the children, putting at risk the children’s health, education, and psychological / emotional development.

59After the trial in March 2022, Ms Fontano chose to “have a rest’ from her mental health treatment regime for several months. I am satisfied Ms Fontano’s decision making and her behaviour further deteriorated during this time; and she was simply unable to care for the children safely, consistently, and appropriately, even for short periods of time. I am also satisfied that particularly after the incident at Apartment Complex A in June 2022, Ms Fontano subjected Mr Fontano to ongoing family violence, including by sending him highly abusive and derogatory messages. I am also satisfied that Ms Fontano exposed the children to ongoing family violence, by sometimes using her telephone communications with the children as an opportunity to verbally abuse Mr Fontano. She also continued to send highly abusive and derogatory messages to extended family members, including to Mr Fontano’s father and Ms Fontano’s mother.

60Ms Fontano maintained that she has now resumed, and will in future fully comply with, her mental health treatment regime. However, I have little confidence that she will do so (particularly having regard to her recent history of failing to comply with drug test requests, including by Dr A).

The benefit to the children of having a meaningful relationship with both of the children’s parents

61The Full Court in McCall & Clark approved of the decision of Brown J in Mazorski & Albright, wherein she concluded that "a meaningful relationship…is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one".[17]

[17] McCall & Clark (2009) FLC 93-405, [115] and [121]; Mazorski & Albright (2007) 37 Fam LR 518, [26].

62It was not in dispute that the children have a close and loving relationship with each of their parents. The parties agreed, and I am satisfied, that there is a positive benefit to the children in having and maintaining a meaningful relationship with each of the parties.

ADDITIONAL CONSIDERATIONS

Any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to children’s views

63There was no evidence of the children’s views as to their future live with and spend time with arrangements. In any event, the children are too young and developmentally immature for their views, even if known, to be given any significant weight in this decision.

The nature of the relationship of the children with each of the children’s parents and other persons (including any grandparent or other relative of the children)

64It was not in dispute that the children have a close and loving relationship with each of their parents. I am also satisfied that the children have good relationships with various members of their extended paternal and maternal families, including but not limited to Mr D and Ms E, Ms C, Ms F, Ms G and Ms H. I am satisfied that Mr Fontano facilitates the children’s relationships with not only the extended paternal family, but also with various members of the extended maternal family, in circumstances where Ms Fontano is estranged from, and abusive towards, many of her extended family members.

The extent to which each of the children’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long term issues in relation to the children, to spend time with the children and to communicate with the children

65In the 2022 Reasons at [28], I said that: “I am satisfied that Mr Fontano has taken every opportunity to participate in making decisions about major long-term issues in relation to the children, to spend time with the children and communicate with them. On the other hand, whilst I am satisfied that Ms Fontano loves the children very much and wants to have an active role in their lives, including in relation to their schooling, I am satisfied that her ability to do so has been severely compromised by her mental health issues and related to this, her inability to communicate with Mr Fontano in a respectful and functional manner about the children.”

66I accept Mr Fontano’s evidence that after the March 2022 trial, Ms Fontano’s communications with him and her behaviour became increasingly chaotic. I consider that this was highly likely to be due to Ms Fontano’s decision to “have a rest” from her mental health treatment regime. As I have earlier identified, based on the available evidence, I am unable to make any findings as to whether other factors, such as substance misuse, aggravated Ms Fontano’s situation.

67Although Ms Fontano appeared to maintain that her capacity to participate in making decisions about long term issues in relation to the children, and the parties’ capacity to communicate appropriately with each other, will improve once the family law litigation is concluded, I have no confidence that this will be the case. Aside from my concerns about Ms Fontano’s willingness to remain compliant with her mental health treatment regime in the future (and her functioning if she again decides to “have a rest” from treatment), I also have regard to the specific nature and effects of Ms Fontano’s ADHD diagnosis, including:

a) Dr A’s evidence that a key aspect in Ms Fontano’s case was that she felt intense distress due to her sense of being controlled by others and "invalidation" around the legal processes that have followed the breakdown of the parties' marriage and their separation; as well as Ms Fontano’s tendency to ruminate about issues.

b) Ms K’s evidence that the more that Mr Fontano “withdrew” from Ms Fontano, for example, in limiting his direct communications with her after separation, the more that Ms Fontano perceived his withdrawal as being controlling and invalidating of her, and then escalated her aggressive behaviours towards him in response. Going forward, both parties were likely to experience ongoing difficulties and distress in relation to their communications with each other.

The extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the children

68In the 2022 Reasons at [29] I said that: “Neither [Mr Fontano] nor [Ms Fontano] pay child support for the children to the other parent and instead, each party financially supports the children when in their respective care. In addition, [Ms Fontano] has been notionally responsible for meeting the children’s school fees at [School B]. However, as at January 2022, she was in substantial arrears in relation thereto.”

69At the time of the resumed trial, Mr Fontano was fully financially supporting the children, including their educational costs at School A. Having regard to Ms Fontano’s mental health diagnoses, and impact on her income earning capacity, I consider it likely that Mr Fontano will be required to continue to meet most of the costs associated with the children, in the short to medium term, including their accommodation costs.

The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of his or her parents, or any other child or other person (including any grandparent or other relative of the children) with whom he or she has been living

70By the time of the resumed trial, it was common ground that the children will continue to live primarily with Mr Fontano and spend time with Ms Fontano. At issue was the amount of time, when it would commence, and any conditions that may apply. To that extent, no party proposed final orders that would lead to the children being separated from either of their parents or other significant person with whom they have been living.

The practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty and expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis

71At the time of the resumed trial, Ms Fontano continued to live in Suburb E and Mr Fontano continued to live in Suburb A. The children were attending School A. It was common ground that as and when Ms Fontano recommences spending time with the children, the time should be supervised by a professional agency. The father proposed that the mother solely meet the supervision costs;[18] the mother proposed that the parties equally share the supervision costs;[19] and the ICL proposed that the costs of the supervision and provision of any reports be paid by Ms Fontano, and that Mr Fontano and Ms Fontano otherwise pay for their own initial intake interview.[20] I am satisfied that the order proposed by the ICL is more appropriate, having regard to:

a) The likelihood that Mr Fontano will have to bear most of the children’s costs in the short to medium term, including their accommodation costs.

b) The disparity in the parties’ financial circumstances – and, noting that as part of the property settlement orders made by me on 23 December 2022, Ms Fontano will retain Property A. Ms Fontano failed to comply with paragraph 1 of the said orders to pay Mr Fontano the sum of $877,000 (gross of tax). This resulted in the default provisions of the said orders taking effect, which meant that Mr Fontano was obliged to receive $490,000 of the payment by way of a superannuation splitting payment, instead of a cash amount. Whilst Ms Fontano can access her superannuation funds as and when she chooses, and still receives her income protection payments monthly, there was no evidence before the Court that Mr Fontano is similarly able to access his superannuation funds prior to his eventual retirement.

The capacity of each of the parents and any other person to provide for the needs of the children, including emotional and intellectual needs

[18] Mr Fontano’s Minute filed 20 February 2023 at [8].

[19] Ms Fontano’s Minute filed 24 February 2023 at [5].

[20] ICL’s Minute filed 21 March 2023 at [4].

72I am satisfied that Mr Fontano has amply demonstrated his capacity to provide for the needs of the children, including their emotional and intellectual needs; and the children are happy and progressing well in his care.

73On the other hand, having regard to my findings, particularly those at paragraphs [28] to [30] inclusive; [33g] to [33i] inclusive; and [56] to [60] inclusive above, I am satisfied that Ms Fontano has a very limited capacity to provide for the children’s needs, even for short periods. In particular: I accept Ms K’s evidence that Ms Fontano has been unable to create a predictable, measured, and safe lifestyle and environment for the children, putting at risk their health, education, and psychological and emotional development.

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the court thinks are relevant

74In mid-2022, Child B underwent a full learning psychological assessment, which indicated that Child B had signs of Specific Learning Disability and ADHD. Since that time, he has also undergone reviews by an ENT specialist, an Occupational Therapist, and a paediatrician. The paediatrician has placed Child B on a trial of ADHD medication, which appears to be going well. Child B has settled into School A and made many friends at school. He has enjoyed playing sports on weekends.

75Child A has also settled into School A, has a good group of friends, and is excelling academically. She enjoys sports and is involved in weekend activities.

The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the parents

76I am satisfied that Mr Fontano has demonstrated a very positive attitude to the responsibilities of parenthood. I agree with the submissions of Ms M during the trial in March 2022 and/or at the resumed hearing, that Mr Fontano: (1) has made decisions concerning the children in a child focussed and reasonable way; (2) has shown considerable compassion about the deterioration in Ms Fontano’s mental health, in circumstances where Ms Fontano has continually subjected him to ongoing family violence; (3) has supported the children having an ongoing relationship with Ms Fontano; and (4) has attempted to resolve issues with Ms Fontano in a sensible fashion, for example offering to facilitate the transport of the children from School A to her home on Fridays after school.

77On the other hand, I am satisfied that Ms Fontano’s ability to take a positive and child focussed approach to her parenting responsibilities has been severely undermined by: (1) her mental health issues; and (2) her very negative and hostile attitude towards Mr Fontano.

78I am also satisfied that having regard to Ms Fontano’s mental health issues, her attitude towards Mr Fontano and her inability to communicate with Mr Fontano in a respectful and functional manner, the parties simply have no ability to effectively co-parent the children or co‑operatively make long term decisions concerning the children.

Any family violence involving the children or a member of the children’s family

79I have already dealt with this consideration in my assessment of the primary considerations.

Any other fact or circumstance the court thinks is relevant

80It appeared to be common ground that in recent years, the children have had limited contact with Ms Fontano’s brother Mr Q, who suffers from schizophrenia. It also appeared to be common ground that shortly before the hearing for closing submissions on April 2023, an incident occurred at the maternal grandparents’ home involving Mr Q, and that Mr Q is presently an inpatient at a psychiatric facility. On April 2023, the parties consented to interim orders being made in the terms of a Minute (and on the basis that unless advised, the parties agreed that I can also make a final order by consent in the terms of the Minute as and when final orders are made and issued). Those orders provided for:

a)Ms Fontano to be restrained by injunction from allowing the children to be in the presence of Mr Q, without being supervised by Ms Fontano, and permitting Mr Q to live at her residence or overnight at any other accommodation at which Ms Fontano is staying with the children; and

b)Both parties to be restrained by injunction from discussing or allowing the children to be in the presence of any third party when discussing, adult issues arising from the incident in relation to the fire at the maternal grandparents’ home with, or in the hearing distance of, the children, including the fire, how it was caused, any suicidality of Mr Q or his state of mental health.

81There are no other matters that I consider relevant.

CONCLUSIONS IN RELATION TO PARENTING ISSUES

Parental responsibility and live with arrangements

82Ms Fontano sought an order for equal shared parental responsibility for the children. On the other hand, Mr Fontano and the ICL both sought an order that Mr Fontano have sole parental responsibility for the children, albeit the ICL proposed that it be subject to some conferral conditions. Both Mr Fontano and the ICL also sought an order (and Ms Fontano conceded) that the children should continue to live with Mr Fontano.

83In this case, I am satisfied that the presumption of equal shared parental responsibility does not apply, as there are reasonable grounds to believe that Ms Fontano has engaged in family violence towards Mr Fontano. Even if that were not the case, I am satisfied it would not be in the children’s best interests for Mr Fontano and Ms Fontano to have equal shared parental responsibility. This is because I am satisfied that the parties are simply unable to consult with each other about parenting issues as they arise and make a genuine effort to come to a joint decision about such issues, given Ms Fontano’s very negative and hostile attitude to Mr Fontano and their ongoing communication issues.

84Having regard to my findings at paragraphs [76] to [78] inclusive above and Ms Fontano’s concession that the children should continue to live with Mr Fontano, I am satisfied that it is in the children’s best interests to make an order for sole parental responsibility in the terms sought by Mr Fontano. So that there can be no doubt about the matter, I am not satisfied that:

a) The orders proposed by the ICL that Mr Fontano have sole parental responsibility, subject to conferral conditions is in the best interests of the children. This is because I am satisfied that having regard to: (1) Ms Fontano’s mental health issues, her very negative and hostile attitude towards Mr Fontano and her inability to communicate with Mr Fontano in a respectful and functional manner; and (2) the parties’ inability to effectively co‑parent the children or co-operatively make long term decisions concerning the children, the requirement for conferral is simply likely to lead the parties into further disputes – and make it more likely than not that Ms Fontano will continue to subject Mr Fontano to highly derogatory and abusive messages.

b) There is any functional purpose or role for a parenting co‑ordinator to play in this case, in circumstances where I am satisfied that Mr Fontano should have sole parental responsibility for the children.

Usual spend time with arrangements and related conditions

85Save for some specific issues which I address later in these reasons, I am satisfied that it is in the best interests of the children to spend time with Ms Fontano in accordance with the orders proposed in the ICL’s Minute at paragraphs [3] to [9] inclusive, and as amended by the ICL during her closing submissions,[21] for the following reasons:

[21] During her closing submissions, she advised that she no longer sought orders in the terms of [6] of her Minute; and that the time in [5] of the Minute should be from 10am until 2pm.

86 Firstly, Ms Fontano proposed that she spend supervised time with the children on eight occasions for up to two hours at a time over a four‑week period. Provided that the supervisor’s report did not contain any adverse findings about Ms Fontano, she proposed that she would then progress to spending time with the children each weekend, from after school Friday to before school Monday. Ms Fontano did not propose that she be subject to any other conditions, including either undertaking further drug testing or keeping Mr Fontano updated in relation to her ongoing mental health treatment regime. I am not persuaded that such arrangements are in the children’s best interests in circumstances where:

a) Ms Fontano does not propose to be subject to any monitoring in relation to substance misuse and compliance with her mental health treatment regime. Ms Fontano chose not to follow her mental health treatment regime for many months after the trial in March 2022, leading to a further deterioration in her decision making and her behaviour. Ms Fontano also failed to comply with a request by Dr A to undergo drug testing in mid-2022 and she consistently refused to comply with requests and/or court orders to undergo drug testing in 2022 in the context of the ongoing family law proceedings – particularly during the period after March 2022 when her decision making and her behaviour became increasingly chaotic. While Ms Fontano eventually underwent a drug test in early 2023, which was clear for illicit drugs, the test was only for a three-month period. Ms Fontano’s denial in relation to illicit drug misuse prior to that period does nothing to assuage my concerns about this issue. In my view, it is appropriate that Ms Fontano be subject to an extended drug testing regime and that some basic arrangements be put in place to enable Mr Fontano to be updated in relation to Ms Fontano’s compliance with her mental health treatment regime.

b) I am satisfied that Ms Fontano has demonstrated a very limited capacity to provide for the children’s needs, even for short periods. I am not persuaded that Ms Fontano’s capacity in this regard is likely to significantly improve once the proceedings come to an end. In particular: I accept Ms K’s evidence that Ms Fontano has been unable to create a predictable, measured, and safe lifestyle and environment for the children, putting at risk their health, education, and psychological and emotional development. When Ms Fontano was given the opportunity to take the children to school on Mondays, she was unable to regularly get the children to school on time or at all, necessitating a change in the interim orders.

87 Secondly, Mr Fontano proposed that prior to spending any supervised time with the children at all, Ms Fontano: (1) undergo a hair strand drug analysis test (for a nine-month period) for the detection of specified substances and produce a clear result; and (2) provide a report from Dr A and her treating psychologist setting out: (a) her current treatment plan, including all medications and dosages; (b) the continuation / frequency of treatment / consultations; and (c) whether there is any reason that should prevent Ms Fontano from caring for the children, including whether there is a risk to the children in spending either supervised or unsupervised time with the children. However, I am not persuaded that it is in the children’s best interests to defer the commencement of supervised time with Ms Fontano, as proposed by Mr Fontano, or that the conditions proposed by Mr Fontano are reasonable in any event, for the following reasons:

a) I am satisfied that a professional supervision agency can closely monitor Ms Fontano’s presentation and behaviour during supervised visits, and act protectively if there are any concerns about Ms Fontano being affected by substances or so seriously mentally unwell that the visit cannot continue.

b) Given that Ms Fontano has consistently refused to provide a drug test to cover the relevant period in 2022, I consider there is little point in again making another order to this effect. Rather than continuing to attempt to shine a light on past events, I consider it is more child focussed to take a prospective approach and encourage both Mr Fontano and Ms Fontano to do the same. To that end, I prefer the order for ongoing drug testing as proposed by the ICL.

c) In relation to the provision of reports by Ms Fontano’s treating mental health providers, I accept the evidence of Dr A that it is likely to be counter-productive to Ms Fontano’s ongoing therapy if he had to provide ongoing reports to Mr Fontano about Ms Fontano. Whilst he was not comfortable about disclosing the content / detail of his appointments with Ms Fontano, he was prepared to provide Mr Fontano with “attendance reports”. I also accept Ms K’s evidence that if orders were made permitting Mr Fontano to obtain information from Ms Fontano’s treating health providers, then Ms Fontano may find the arrangement so intrusive that she stops seeking treatment. Instead, Ms K opined that the only feedback, if any, Mr Fontano should receive is that Ms Fontano was attending her scheduled appointments.

88Mr Fontano also proposed that as and when Ms Fontano commenced spending time with the children for the first six months: (1) the time be supervised by a professional supervision agency; (2) the visits take place at Ms Fontano’s home (or such other venue as agreed between the parties in writing); and (3) the time occur each Sunday and on a gradually increased basis. Thereafter, provided that the supervisor’s report did not contain any adverse findings about Ms Fontano, then the time move to unsupervised time and Ms Fontano continue to spend time with the children each Sunday from 10am until 4pm. Subject to the supervision requirements and other conditions in the first six months, Mr Fontano also proposed that the children spend additional limited time with Ms Fontano during school holidays and on other special occasions. I am not persuaded that the orders proposed by Mr Fontano are in the children’s best interests. This is because I am satisfied that the arrangement proposed by Mr Fontano gives the children no hope in the foreseeable future of having their mother meaningfully involved and engaged in their day-to-day life, for example: spending any overnight time with their mother or being collected by their mother from school.

89 Thirdly, the ICL proposed that over a period of 12 months, Ms Fontano spend gradually increasing time with the children, initially each Sunday from 10am until 2pm, supervised by a professional supervision agency, until such time as Ms Fontano is spending unsupervised time with the children: (1) most weekends from after school on Friday until 5pm on Sunday; (2) for additional (but not equal) time during school holidays; and (3) on specified special occasions. Pursuant to the ICL’s proposed orders, the progression of Ms Fontano’s time and move to unsupervised time is subject to Ms Fontano periodically providing one or more of the following: (1) a report from the supervision agency which notes no adverse findings (Supervision Report); (2) Ms Fontano completing a 3-month clean hair strand test for the detection of specified substances (and on the basis that Ms Fontano provides the testing agency with a copy of all her prescription medications) (Clean Drug Test Report); and (3) a report from Dr A and her treating psychologist (or other appropriately qualified treating professionals) stating Ms Fontano’s dates of attendance, current treatment plan, list of all medications that Ms Fontano is currently prescribed, and if they are willing to do so, whether they perceive any risk for the children being in Ms Fontano’s care (Mental Health Report).

90I am satisfied that the children’s time with Ms Fontano, supervised by a professional supervision agency, should commence as soon as practicable (and without the necessity for a further drug test in the interim or a further report from Dr A and Ms Fontano’s treating psychologist). As I have earlier identified, I am satisfied that a professional supervision agency can closely monitor Ms Fontano’s presentation and behaviour during supervised visits, and act protectively if there are any concerns about Ms Fontano being affected by substances or being so seriously mentally unwell that the visit cannot continue. To that end, I am satisfied that the orders proposed by Ms Fontano: (1) requiring both parents to promptly contact the professional supervision agency and attend intake sessions, (2) comply with the directions and recommendations of the Agency, and (3) permitting the parties to provide copies of these orders to the Agency are also appropriate.

91I am satisfied that the conditions proposed by the ICL in relation to Ms Fontano providing Supervision Reports, Clean Drug Test Reports and Mental Health Reports are reasonable in providing Mr Fontano with a degree of comfort about Ms Fontano’s ongoing functioning, without being unduly intrusive on Ms Fontano. However, I am satisfied that: (1) once Ms Fontano progresses to fully unsupervised time,[22] the time should be primarily spent at Ms Fontano’s home, which will enable Ms Fontano and the children to engage in some outside activities during day, for example: going to the park or to the cinema; (2) before Ms Fontano progresses to overnight time with the children,[23] she should be required to provide a further up‑to‑date Clean Drug Test Report, as well as an up-to-date Mental Health Report; and (3) before Ms Fontano progresses to time each weekend from after school Friday until 5pm Sunday,[24] she should only be required to provide a further up-to-date Clean Drug Test Report and an up-to-date Mental Health Report.

[22] Refer to the ICL’s Minute filed 21 March 2023, at paragraph [7].

[23] Refer to the ICL’s Minute filed 21 March 2023 at paragraph [8].

[24] Refer to the ICL’s Minute filed 21 March 2023 at paragraph [9].

92I am satisfied that the graduated extension of Ms Fontano’s time, as well as the graduated reduction in the requirement for supervision, will enable Ms Fontano to demonstrate over an extended period whether she can remain compliant with her mental health treatment regime and not exceed the limits of her parenting capacity. If Ms Fontano can do so, then it also enables the children to eventually enjoy the benefits of their mother’s meaningful involvement and engagement in their day‑to‑day life.

93Subject to the parties having liberty to make further submissions in relation thereto, I am satisfied that the spend time with orders, as proposed by the ICL, should be re-drafted to provide greater clarity, including to make it clear that if Ms Fontano does not meet one or more of the conditions, then her time with the children does not progress to the next stage.

94I am satisfied that the order sought by Mr Fontano that he have liberty to suspend Ms Fontano’s time with the children if he has a reasonable belief that the children will be at risk in Ms Fontano’s care[25] is reasonable. In my view, Mr Fontano has amply demonstrated his capacity to act in a protective, positive and child focussed manner, including continuing to facilitate the children’s time and communications with Ms Fontano when it has been safe to do so, in the face of Ms Fontano’s ongoing hostility and abuse.

[25] Refer to the father’s Minute filed 20 February 2023 at paragraph [13].

95As I have earlier identified, I prefer the orders proposed by the ICL in relation to the payment of the costs of supervision. I am also satisfied that Ms Fontano should be solely responsible for the costs associated with her obtaining and providing to Mr Fontano the Clean Drug Test Reports and the Mental Health Reports.

96The ICL proposed that Ms Fontano be required to provide her treating mental health team with copies of certain documents, to facilitate them being able to provide the Mental Health Reports. Subject to the following matters, I am satisfied that such an order is appropriate, particularly as it was evident from Dr A’s evidence that Ms Fontano did not always provide him with a full or clear understanding of her circumstances from time to time. Firstly, I am satisfied that Ms Fontano should be required to provide copies of the relevant documents to her mental health team as it exists from time to time, given the possibility that Ms Fontano may change the providers that she attends upon from time to time. Secondly, I am not persuaded that there is any utility in providing Ms Fontano’s mental health team with copies of the affidavits of Mr Fontano and Mr A and Ms B. Instead, and subject to the parties having leave to make further submissions in relation thereto, I propose that Ms Fontano’s mental health team be provided with a copy of these reasons for decision.

97The ICL and Mr Fontano also proposed that Ms Fontano be required to provide an authority to her mental health team to provide Mr Fontano with the Mental Health Reports from time to time, if Ms Fontano does not provide them to Mr Fontano within a reasonable time of them being produced. I consider that such an arrangement is sensible.

Handovers

98Ms Fontano proposed that handovers take place at the children’s school on school days, and otherwise at the parties’ residences, with “both parties to remain courteous and polite” at handovers. I have no confidence that Ms Fontano can do so.

99Mr Fontano’s proposal in relation to handovers did not consider the prospect that eventually, Friday afternoon handovers will take place at the children’s school. Otherwise, his proposal for handovers was largely in accord with the ICL’s proposals in this regard: that as and when Ms Fontano progressed to unsupervised time, then handovers should continue to be supervised by the professional supervision agency, take place at Ms Fontano’s home (unless otherwise agreed) and the costs be shared equally by the parties. I am satisfied that such an arrangement is in the children’s best interests, in reducing the potential for Ms Fontano to subject Mr Fontano to (and expose the children to) further family violence.

Communications

100Ms Fontano proposed that the children have electronic communications with the parent with whom they were not living three times a week, including on Saturday evenings. On the other hand, the ICL and Mr Fontano proposed that the children continue to have electronic communications with Ms Fontano twice a week and did not seek that Mr Fontano have regular communications with the children when they were in Ms Fontano’s care. I am not persuaded that the order proposed by Ms Fontano is in the best interests of the children because: (1) I accept that Mr Fontano wishes to limit his contact with Ms Fontano, so as to reduce the opportunities for her to verbally abuse him and that Ms Fontano’s proposal – that he telephone her in order to speak with the children – provides Ms Fontano with further opportunities in this regard; and (2) I consider that the Saturday evening calls are likely to be unduly disruptive to Mr Fontano’s time with the children, given the limited number of Saturday nights he will spend with the children in the medium to long term pursuant to these orders. Although there is little difference in the orders proposed by the ICL and Mr Fontano, I prefer the orders proposed by the ICL, as making clear Mr Fontano’s obligation to keep his phone turned on and charged during the “call windows” each Tuesday and Thursday evening.

Suspension of time with Ms Fontano – school holidays and special occasions

101The orders proposed by Ms Fontano did not enable the children to spend any regular weekend time with Mr Fontano. Further, Ms Fontano effectively proposed that within a very short period, she spend unsupervised, extended and/or overnight time with the children during school holidays and special occasions. On the other hand, Mr Fontano and the ICL agreed that Ms Fontano’s usual time with the children should be suspended on two weekends each school term. Otherwise, Mr Fontano and the ICL each proposed different arrangements to enable Ms Fontano to spend further (albeit limited) time with the children during school holidays and special occasions. I am satisfied that:

a) Ms Fontano’s time with the children should be suspended for two weekends per school term, on the basis proposed by the ICL and Mr Fontano, to enable the children to have some uninterrupted weekend time during the school terms with their father. However, to make it clear, I propose to also provide that Mr Fontano is not permitted to nominate the weekend on which Mother’s Day falls each year.

b) In relation to school holidays and special occasions: Firstly, I am not persuaded that the orders proposed by Ms Fontano are in the children’s best interests. In particular: based on the evidence currently available to the Court, I am not persuaded that Ms Fontano currently has the capacity to spend overnight time with the children, or that she has the capacity to appropriately care for the children for half of each school holidays. Secondly, I am not persuaded that all the orders proposed by Mr Fontano are in the children’s best interests. In particular: the proposed school holiday arrangements may well reduce the actual time the children spend with Ms Fontano during school holidays (as distinct from during the normal school terms) and does not allow for the possibility of any weekend or overnight time. Thirdly, I am not persuaded that all the orders proposed by the ICL are in the children’s best interests. In particular: the proposal effectively means that the children never get to spend any clear time with their father on weekends during school holidays. Fourthly, I am satisfied that Mr Fontano’s and the ICL’s proposals in relation to the Christmas festive period are sensible, and in the children’s best interests – in allowing the children to spend time with each of their parents. Aside from Christmas and Mother’s Day (for which I have already made provision) I concur with Mr Fontano that it is unnecessary to otherwise make specific provision for other special occasion days; and noting that if Mr Fontano seeks to spend Father’s Day with the children, he is able to nominate this weekend to spend with the children. Finally, subject to the parties having liberty to make further submissions, I propose to make orders providing for:

(i)Ms Fontano to have her usual weekend time with the children on the first weekend of each end of Term 1, 2 and 3 school holiday period, together with two additional non‑consecutive days in the first week thereof, and thereafter Ms Fontano’s time be suspended until the weekend following the commencement of the new school term. This will enable the children to enjoy some holiday time with their mother, but still provide the children with a block of uninterrupted holiday time with their father, including the middle weekend and last weekend before returning to school.

(ii)During the end of Term 4 school holidays, Ms Fontano to have her usual weekend time with the children on the first weekend following the end of Term 4, together with two additional non-consecutive days in the first week of the holidays, and thereafter with the same arrangements to follow in the third and fifth week of the school holidays. Ms Fontano’s time will then recommence on the weekend following the commencement of the new school term. This will again enable the children to enjoy some holiday time with their mother, but still provide the children with three blocks of uninterrupted holiday time with their father, including the final weekend before they return to school.

(iii)In each case, Ms Fontano’s time will be subject to any applicable conditions, pursuant to paragraph 4 of the proposed orders.

Ms Fontano’s mental health

102Leaving aside the provision of the Mental Health Reports, neither Ms Fontano nor Mr Fontano proposed that Ms Fontano be subjected to any orders in relation to her ongoing engagement with her mental health team. On the other hand, the ICL proposed that orders be made requiring Ms Fontano’s continuing engagement for as long as recommended by her mental health team. At the end of the day, I decline to make the orders sought by the ICL for the following reasons: (1) Ms Fontano is an adult, the SAT recently dismissed the application for the appointment of a guardian and trustee for Ms Fontano, and accordingly, Ms Fontano can make her own decisions about her ongoing engagement with her mental health team; (2) Ms Fontano has already demonstrated an unwillingness to follow court orders that she considers to be unduly intrusive; and (3) I am satisfied that the proposed orders provide sufficient safeguards to protect the children if Ms Fontano again chooses to discontinue her treatment and her mental health and functioning thereafter further deteriorates.

The provision of medical information concerning the children

103Ms Fontano sought detailed orders in relation to the exchange of medical information concerning the children, including providing a copy of these orders to the children’s medical providers. Whilst such orders might be appropriate in circumstances where the parties have equal shared parental responsibility, I am not persuaded they are appropriate in this case – given that Mr Fontano will have sole parental responsibility. Both Mr Fontano and the ICL proposed an exchange of information, limited to medical emergencies. Save for clarifying that the medical emergency should concern the children, I am satisfied that the specific orders proposed by Mr Fontano are appropriate, in making clear each party’s obligations, and accordingly are less likely to lead the parties into further disputes.

Education and extra-curricular activities

104The parties and the ICL all sought detailed orders in relation to the provision of information and other matters concerning the children’s education and engagement in extra-curricular activities. Again, whilst the specific order sought by Ms Fontano in relation to the children’s extra‑curricular activities might be appropriate in circumstances where the parties have equal shared parental responsibility, I am not persuaded they are appropriate in this case. I am satisfied that the specific orders proposed by Mr Fontano are appropriate, in making clear each party’s obligations, and accordingly are less likely to lead the parties into further disputes.

The parties’ communications and information sharing

105The parties and the ICL agreed that the parties should communicate in relation to the children through the Our Family Wizard App. In this regard, I prefer the orders as proposed by the ICL and Mr Fontano, which make it clear that the communications are to be solely in relation to the children. They disagreed as to the payment of the subscription costs. In circumstances where Mr Fontano did not maintain that he could not afford the relatively small costs involved, I am satisfied that both parties should maintain a subscription to the App at their own cost. Although Mr Fontano proposed as an alternative arrangement the use of a communications book if either party failed to renew their subscription, I am not persuaded that such an arrangement is in the children’s best interests – particularly given the children’s ages and the possibility that they might read the book.

106The ICL proposed an order to enable the parents to keep each other advised as to their residential address and contact telephone number. I consider that such an order is reasonable.

Injunctions

107The parties and the ICL proposed the making of various injunctions. In relation to these matters:

a) Ms Fontano sought an order that Mr Fontano be restrained from allowing her father to spend unsupervised time with the children or from driving the children. Mr Fontano and the ICL were silent in relation to this issue. Ms Fontano’s concerns in relation to her father appeared to be historic, and there was no evidence to suggest that the maternal grandfather has harmed the children, or otherwise posed a risk to them. In circumstances where I am satisfied that Mr Fontano would, at all times, act protectively of the children and make child focussed decisions in their best interests, I am not persuaded that the order sought by Ms Fontano is either necessary or reasonable. I decline to make the order sought by Ms Fontano.

b) Ms Fontano sought an order that both parties be restrained from changing the children’s school enrolment without the written consent of the other party. In circumstances where I intend to make an order that Mr Fontano have sole parental responsibility for the children, which includes long term decisions concerning the children’s education, I am not persuaded that the order sought by Ms Fontano is either necessary or reasonable. I decline to make the order sought by Ms Fontano.

c) Ms Fontano also sought orders that both parents be subject to non‑denigration injunctions, as well as injunctions from using illicit substances during or within 24 hours of caring for the children and from consuming alcohol to excess while caring for the children. On the other hand, Mr Fontano and the ICL sought that the timeframe in relation to the use of illicit substances be 72 hours. Further, Mr Fontano sought that Ms Fontano be subject to a similar restriction in relation to the use of alcohol (but proposed a 24 hour timeframe), but did not propose any such injunction apply to him. I am satisfied that the orders proposed by Ms Fontano in this regard are appropriate, save that the timeframe in relation to the use of illicit substances should be extended to 72 hours. Mr Fontano and the ICL also proposed a further injunction be made in relation to discussions with the children (or within their hearing) about these proceedings. I also considered that such an order is appropriate.

d) Mr Fontano sought several other injunctions against Ms Fontano, including specifically to limit the opportunity for Ms Fontano to continue to subject him and his family to ongoing abuse and inappropriate communications. Save and except for the following matters, I am satisfied that the orders sought by Mr Fontano were appropriate in attempting to “contain” Ms Fontano’s ability to continue to subject him to family violence: Firstly, I am not satisfied it is either practicable or desirable to make an order that restrains Ms Fontano from “making allegations about the father to any other person”, as this would, for example, restrain Ms Fontano from being able to discuss matters with her partner or that may be relevant to her ongoing therapy with Dr A. Secondly, given the orders I propose to make in relation to the use of the Our Family Wizard App, I am not satisfied it is either practicable or desirable to make an order that attempts to put limits on topics about Ms Fontano’s communications with Mr Fontano concerning the children, and such an order is likely to lead the parties into further disputes. Thirdly, I am not persuaded it is appropriate to place restrictions on Ms Fontano’s ability to relocate from Suburb E in the future, unless it is to move closer to the father’s residence.

Travel arrangements

108Ms Fontano did not seek any orders in relation to travel arrangements or the children’s passports. On the other hand, Mr Fontano and the ICL both proposed orders that restrained Ms Fontano from travelling out of the Perth metropolitan area with the children; and otherwise permitted Mr Fontano to travel with the children interstate and overseas, including making arrangements for the issue of passports for the children. I consider that the orders proposed by Mr Fontano and the ICL were appropriate.

ORDERS

109I propose to issue these reasons from chambers in order to give the parties and the ICL to consider them, and my proposed orders, as follows:

1. All previous orders in relation to the children CHILD A born May 2014 and CHILD B born June 2015 (the children) be discharged.

Parental responsibility and live with orders

2. MR FONTANO (the father) have sole parental responsibility for the children.

3. The children live with the father.

Spend time with orders

4. The children spend time with MS FONTANO (the mother) as follows:

a)Each Sunday 10am until 2pm, or as otherwise agreed in writing between the parties, with the time to be supervised by Supervision Centre A or such other professional supervision agency as the parties agree in writing from time to time (Agency), and with the handover to take place at the mother’s residence, unless otherwise agreed in writing between the parties.

b)After a period of three months, the requirement pursuant to sub‑paragraph (a) hereof for the mother’s time to be supervised for the final two hours each Sunday be discharged, provided that the mother:

i) Obtains and provides to the father a supervision report from the Agency (Supervision Report) and the report notes no adverse findings in relation to the mother’s time.

ii)Completes and provides to the father, a clean three‑month hair strand test (Clean Drug Test Report) for the detection of ecstasy, cocaine, amphetamines, cannabinoids, benzodiazepines, and alcohol, (save and except for prescription medications taken in compliance with her doctors’ prescriptions and on the basis that the mother shall provide a copy of all her medication prescriptions to the testing authority).

iii)Obtains and provides to the father a report from her treating psychiatrist, Dr A, and her treating psychologist, Dr T, or such other appropriately qualified treating professionals (mental health care team) which states the mother’s dates of attendance, current treatment plan, a list of all medications that the mother is currently prescribed, and if the mental health care team is willing to do so, a statement outlining whether in their professional opinion/s there is any reason and/or they perceive any risk for the children being in the mother’s care (Mental Health Report).

c)After a period of six months, the requirement for the mother’s time to be supervised be discharged and the mother’s time with the children pursuant to sub-paragraph (a) hereof be extended to take place on Sundays from 10am until 4pm, with the time to be primarily spent at the mother’s home, provided that the mother:

i)Obtains and provides to the father an up-to-date Supervision Report and the report notes no adverse findings in relation to the mother’s time.

ii)Completes and provides to the father an up-to-date Clean Drug Test Report.

iii)Obtains and provides to the father an up-to-date Mental Health Report.

d)After a period of nine months, the mother’s time with the children pursuant to sub-paragraph (a) hereof be extended to take place each weekend from 5pm Saturday until 5pm Sunday, provided that the mother:

i)Completes and provides to the father an up-to-date Clean Drug Test Report.

ii)Obtains and provides to the father an up-to-date Mental Health Report.

e)After a period of 12 months, the mother’s time with the children pursuant to sub-paragraph (a) hereof be extended to take place each weekend from after school Friday (with the mother to collect the children from school) until 5pm Sunday, provided that the mother:

i)Completes and provides to the father an up-to-date Clean Drug Test Report.

ii)Obtains and provides to the father an up-to-date Mental Health Report.

5. In relation to the commencement of supervised time with the Agency:

a)The mother and the father forthwith contact the Agency and attend individual intake sessions (if required) at the earliest opportunity.

b)The mother and the father follow all directions and recommendations of the Agency and comply with its policies and procedures.

c)Both parties and the ICL have liberty to provide a copy of these orders to the Agency.

6. The father and the mother shall each be responsible for paying for their own initial intake interviews with the Agency; and the mother shall otherwise be responsible for paying all supervision costs, and the costs associated with the provision of the Supervision Reports, the Clean Drug Test Reports, and the Mental Health Reports.

Mental Health Reports

7. Prior to obtaining a Mental Health Report pursuant to paragraph 4 hereof, the mother, if she has not already done so, shall provide her mental health care team (from time to time) with a copy of the following documents:

a)The single expert report of Ms K filed December 2021.

b)A copy of the mother’s hair strand drug test results released on January 2023.

c)Copies of these reasons for decision and these orders.

8. The mother do provide an irrevocable authority to her mental health care team (from time to time) that the Mental Health Reports be provided to the father, in the event that the mother does not provide it to the father in the first instance.

Suspension of mother’s time

9. The father be at liberty to suspend the mother’s time with the children if he has a reasonable belief that the children will be at risk in the care of the mother, with the father to notify the mother in writing of any such decision.

10. The children’s time with the mother as set out in paragraph 4 hereof be suspended for two weekends per school term, with the father to nominate those weekends no less than four weeks in advance in writing, provided always that the father shall not be permitted to nominate the weekend on which Mother’s Day falls each year.

Spend time with arrangements during school holidays and the Christmas festive period

11. The children’s time with the mother pursuant to paragraph 4 hereof which occurs during school holidays shall occur as follows:

a)During the first week of the end of Term 1, 2 and 3 school holidays, in addition to the usual weekend time pursuant to paragraph 4 hereof, the children spend time with the mother from 10am until 4pm on two non-consecutive days, with such days to be agreed in writing between the parties, and failing agreement to occur on the Tuesday and Thursday; and the time pursuant to paragraph 4 hereof shall otherwise be suspended for the remainder of each of the school holidays and recommence on the first weekend following the commencement of the new school term.

b)During the first, third and fifth week of the end of Term 4 school holiday, in addition to the usual weekend time pursuant to paragraph 4 hereof, the children shall spend time with the mother from 10am until 4pm on two non-consecutive days, with such days to be agreed in writing between the parties, and failing agreement to occur on the Tuesday and Thursday; and the time pursuant to paragraph 4 hereof shall otherwise be suspended for the remainder of the school holiday and recommence on the first weekend following the commencement of the new school term.

12. The children’s time with the mother pursuant to paragraph 4 hereof which occurs during the Christmas festive period each year (which is defined to fall from 10am Christmas Eve until 4pm Christmas Day) shall be suspended and in lieu thereof:

a)In 2023 and each alternate year thereafter, the children spend time with the mother from 10am until 4pm on Christmas Day; and

b)In 2024 and each alternate year thereafter, the children spend time with the mother from 10am until 4pm on Christmas Eve.

Handovers

13. Unless otherwise specified in these orders, upon the mother being permitted to spend unsupervised time with the children pursuant to these orders, handovers shall be: (1) supervised by the Agency, and (2) take place at the mother’s residence, unless otherwise agreed in writing between the parties; and on the basis that the costs of the supervised handovers shall be equally shared by the parties.

Mother’s communications with the children

14. The mother be at liberty to communicate with the children by telephone and/or video call, such as Skype or Facetime, each Tuesday and Thursday between 6.15pm and 6.45pm, or at such other times as agreed in writing between the parties.

15. For the purposes of the preceding paragraph, the mother is to initiate the call to the father’s phone, and the father is to keep his phone turned on and charged.

Medical emergencies concerning the children

16. In the event of a medical emergency concerning the children, the parent with whom the children are spending time shall contact the other parent as soon as reasonably practicable and shall inform the other parent of the nature of the emergency and the particulars of treatment recommended or carried out.

17. Both parents shall do all things necessary to follow the reasonable recommendations of the children’s medical practitioners.

Children’s education and extra-curricular activities

18. The father be at liberty to provide School A, and any other school the children may attend, with a copy of these orders.

19. Both parents be at liberty to liaise directly with the children’s school/s, sporting bodies and any extra-curricular organisations with which the children are associated to receive notices, information, and documents which the parents would ordinarily receive.

20. Both parents be at liberty to attend and engage in any event relating to the children’s education or extra-curricular activities including but not limited to any assembly, parent-teacher interviews, and extra‑curricular activities in which the children participate, on the basis that attendance at the school is limited to those recommended by the school that parents can attend.

Parents’ communications with each other

21. The parents shall only communicate via the Our Family Wizard App (or such alternative app as may be agreed in writing between them from time to time) and with such communications to be solely in relation to the children.

22. Each parent pay their own subscription costs of the Our Family Wizard App (or such alternative App as may be agreed in writing between them from time to time).

Injunctions

23. Each party be restrained and an injunction be granted restraining each of them from:

a)Denigrating the other parent or any person significant in the children’s lives to the children or within their hearing.

b)Discussing any matters arising out of these proceedings with the children or within their hearing.

c)Consuming any illicit substances whilst caring for the children or during the 72 hours prior to any scheduled time with the children.

d)Consuming alcohol to excess whilst caring for the children.

e)Causing or allowing any other person to engage in conduct referred to in this paragraph.

f)Discussing or allowing the children to be in the presence of any third party when discussing, adult issues arising from the incident in relation to the fire at the maternal grandparents’ home with, or in the hearing distance of, the children, including the fire, how it was caused, any suicidality of Mr Q or his state of mental health.

24. The mother be restrained and an injunction be granted restraining her from:

a)Abusing the father by any means, including directly, or by electronic means, including text messages and other messaging services.

b)Coming within 20 metres of the father.

c)Texting, calling, or emailing the father, other than in a genuine emergency about the children.

d)Making any reference to the father, his family or the Family Court process on social media or permitting any other person to do so.

e)Save as otherwise provided pursuant to these orders, removing the children from their school unless agreed between the parents in writing.

f)Travelling with the children outside of the Perth metropolitan area.

g)Allowing the children to be in the presence of Mr Q, without being supervised by her, and permitting Mr Q to live at her residence or overnight at any other accommodation at which the mother is staying with the children.

Travel and passports

25. The father be permitted to travel with the children outside of the State of Western Australia, provided that: he gives the mother 14 days’ notice of his intention to travel. If such travel occurs during time that the children would otherwise be in the mother’s care, the father do arrange for make-up time to occur as soon as practicable upon his return.

26. No later than 1 September 2023, the mother and father do all things necessary to facilitate the issue of passports for the children.

27. If the mother fails to sign all necessary documents to facilitate the issue of passports for the children by the date set out in the preceding paragraph, then the necessity for the consent of the mother to the issue of passports for the children be dispensed with and for that purpose, a copy of these orders be provided to the Department of Foreign Affairs and Trade (DFAT).

28. Subject to any other requirements of DFAT, a passport be issued to each child to enable them to leave the Commonwealth of Australia for the purpose of holidays.

29. The costs associated with the issue of passports for the children referred to in the preceding orders be met by the father.

30. The children’s passports be held by the father at all times.

Procedural

31. All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.

32. All material tendered as an exhibit and uploaded electronically by the court will be destroyed by the court without notice to the parties on the expiration of 42 days from this order.

33. In the event of an appeal being lodged prior to the expiration period of 42 days, paragraphs 31 and 32 above do not apply.

34. Subject to the filing of any appeal, the Independent Children’s Lawyer be discharged.

35. The matter be removed from the Defended List.

36. All outstanding proceedings be otherwise dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KV

Associate

16 MAY 2023