Belton & Kreiter
[2024] FedCFamC1F 70
•19 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Belton & Kreiter [2024] FedCFamC1F 70
File number: SYC 3764 of 2022 Judgment of: MCCLELLAND DCJ Date of judgment: 19 February 2024 Catchwords: FAMILY LAW – PARENTING – Application for interim parenting orders – Where the matter has been set down for final hearing in September 2024 – Where the father seeks that the children be supervised by a professional if they are not in the parties’ care – Where the father proposes that the children only travel if they are accompanied by a parent or a certified transportation service specifically equipped for transporting children – Proposed Orders 11 and 12 sought in the father’s Application in a Proceeding filed 21 December 2023 be dismissed – Where the remaining orders sought in the father’s Application in a Proceeding filed 21 December 2023 are stood over until the commencement of the final hearing – Costs reserved to final hearing. Legislation: Family Law Act 1975 (Cth) s 60CC Cases cited: Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Bower & Marshall (No 2) (2022) 66 Fam LR 258; [2022] FedCFamC1A 159
Chisholm, Richard “Unacceptable Risk – A Comparison of the Family Law and Care Jurisdictions” (Paper presented at the Children's Court Conference, Parramatta, 1 September 2010)
Division: Division 1 First Instance Number of paragraphs: 33 Date of hearing: 1 February 2024 Place: Sydney The Applicant: Litigant in person Counsel for the Respondent: Mr Harper Solicitor for the Respondent: Karras Partners Lawyers Solicitor for the Independent Children’s Lawyer: Mr Blumberg, Blumberg Family Lawyers ORDERS
SYC 3764 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR KREITER
Applicant
AND: MS BELTON
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
19 FEBRUARY 2024
THE COURT ORDERS THAT:
1.Proposed Orders 11 and 12 sought in the father’s Application in a Proceeding filed 21 December 2023 be dismissed.
2.Costs of the father’s Application in a Proceeding filed
8 November 202321 December 2023 be reserved for determination at the final hearing.
THE COURT NOTES THAT:
A.These Orders have been amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Belton & Kreiter has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ:
This matter concerns an Application in a Proceeding filed by the respondent father, Mr Kreiter (“the father”) on 21 December 2023, seeking interim parenting orders in relation to his three children. The application is opposed by the mother.
The father appeared at this hearing as a litigant in person. The applicant mother, Ms Belton (“the mother”) was represented by counsel.
Save in respect to proposed Orders 11 and 12, by consent, I have stood over the father’s Application in a Proceeding filed 21 December 2023 until the commencement of the final hearing on 2 September 2024. By way of summary, proposed Orders 11 and 12 seek, firstly that the children only be supervised by a professional “qualified in child supervision” when they are spending overnight time away from the primary residence and secondly, that the children only travel if they are accompanied by a parent or a certified transportation service “specifically equipped for transporting children”.
For the following reasons, I have dismissed proposed Orders 11 and 12 sought in the father’s Application in a Proceeding filed 21 December 2023.
BACKGROUND
The father was born in 1977 and is currently 47 years old. The mother was born in 1983 and is currently 41 years old.
The parties were married in 2002 in Country B and migrated to Australia in 2012. The mother and father separated in December 2020.
The parties have three children, being X, born 2009, Y, born 2012 and Z, born 2014. The children are resistant to spending time with the father.
The mother filed an Initiating Application in the Federal Circuit and Family Court of Australia (Division 2) on 2 June 2022.
On 22 June 2023, Judge Boyle transferred the matter to Division 1 and made the following consent orders:
BY CONSENT AND PENDING FURTHER ORDER THE COURT ORDERS THAT:
1. Pursuant to the equal shared parental responsibility conferred upon the parties by Orders made in this Honourable Court on 14 July 2021, and in the implementation of the exercise of such responsibility, the parties shall attend for the purposes of reportable family therapy upon [Dr C] of [D Psychology] (“the therapist”) and for the purposes of such family therapy:-
1.1 The wife shall attend solely and jointly with the children as reasonably requested by the therapist.
1.2 The wife shall not raise any objection to the husband’s wife, [Ms E], also attending upon any appointments nominated by the therapist.
1.3 The husband shall attend solely and jointly with the children as reasonably requested by the therapist.
1.4 The parties shall pay equally the costs of the family therapy.
1.5The parties shall attend the first and all subsequent appointments with the therapist without undue delay.
1.6That the therapy be reportable in any Rice and Asplund threshold proceedings
2.Noted that the wife’s lawyer this morning made an enquiry of [D Psychology] and was advised that appointments with the therapist are available as soon as next month.
3. That the father’s application for a Rice and Asplund threshold determination be stood over to the first directions hearing in Division 1.
At the interim defended hearing on 1 February 2024, by consent, I made orders varying the orders that were made on 22 June 2023, as follows:
1.BY CONSENT the orders made by Judge Boyle on 22 June 2023 by consent be varied, such that the name of [Dr C] of [D Psychology] be replaced with [Mr F] of [D Psychology].
2. Order 1.6 of the orders made by Judge Boyle dated 22 June 2023 be varied, such that it will read “That the therapy be reportable.”
…
The substantive matter is currently listed for final hearing on 2–6 September 2024. The primary issue in those proceedings concerns the children’s resistance in spending time with the father and the reasons for their resistance.
COMPETING APPLICATIONS
The totality of the Minute of Order proposed by the father as contained in his Outline of Case Document (Interim Hearing) filed 30 January 2024 was as follows:
Parental Responsibility
1.That the Mother and Father shall have equal shared parental responsibility for the long-term care, welfare and development of [X], born […] 2009 (‘[X]’), [Y], born […] 2012 (‘[Y]’) and [Z], born […] 2014 (‘[Z]’), (referred to herein as ‘the children’) including but not limited to the following:
a.Schooling for the children including decisions about the type of schooling and the schools that the children shall attend;
b. Surgery, hospitalisations, specialist and medical treatment required by the children for any serious injury, illness or disability;
c. Psychological, psychiatric or other therapeutic counselling for the children;
d. Decisions about the children playing or being involved in any sporting, cultural, artistic or community activities including concerts, competitions, training or meetings, or other developmental or extra‑curricular activities that: -
i. Fall whilst the children are in the care of both parents;
ii. Require both parents to actively be involved in; and/or
iii. Require both parents to financially contribute toward.
2. That the parents are to consult with each other about decisions to be made in the exercise of their shared parental responsibility as follows:
a. They shall inform the other parent about the decision to be made;
b. They shall consult with each other on terms that they agree; and
c. They shall make a genuine effort to come to a joint decision.
3. That notwithstanding the provision in Order 1, the parties each exercise sole parental responsibility for the day-to-day care, welfare and development of the children during those times the children are in their respective individual care.
Living Arrangements
4. That children shall live with the Mother and spend unsupervised time with the Father as follows:
a. From the date of these Orders and for a period of eight (8) weeks thereafter, from 9:00am until 3:00pm each alternate Sunday;
b. From the conclusion of Order 4(a) herein and for a period of eight (8) weeks thereafter, from 9:00am until 3:00pm on Saturday and Sunday in each alternate weekend;
c. From the conclusion of Order 4(b) herein and for a period of eight (8) weeks thereafter, from 9:00am Saturday until 3:00pm Sunday in each alternate weekend; and
d. From the conclusion of Order 4(c) herein and thereafter, from the conclusion of school (or 3:00pm if a non-school day) Friday until 5:00pm Sunday each alternate weekend.
Communication between the parents
5. That both parents shall keep each other informed at all times of their residential address, telephone number/s including mobile telephone numbers and email addresses and advise the other parent of any change to such details forthwith and in any event by no later than twenty- four (24) hours of the change occurring.
6. That both parents shall keep the other parent informed at all times as to the names and addresses of any health practitioners, counsellors, psychologists, psychiatrists or other health professionals attended upon by the children within fourth-eight (48) hours of any appointments.
7. That both parents shall inform the other parent of any serious medical condition, significant health issue or illness suffered by the children as soon as reasonably practicable and in any event within 5 twenty-four (24) hours and in the event the children attend hospital for any illness or injury the other parent shall be notified within two (2) hours.
8. That both parents shall inform the other parent of any specialist medical, optical, dental or health appointments (including counselling, psychiatric or any other therapeutic appointments) made in advance for the children within a reasonable period of notice and in any event at least three (3) days prior to such appointments and both parents shall be at liberty to attend such appointments. Both parents agree that no medical procedure of operation be performed on the children except with the written consent of both either mother and father except in the event of an emergency where the children require immediate medical treatment as advised by the treating medical practitioner.
9. That these orders shall be sufficient authority for the children’s treating practitioners and specialist practitioners or other health practitioners to provide any and all information relating to the children to both parents however shall not be taken to discharge the parent’s obligations pursuant to these Orders to keep each other informed of such information.
10. That both parents hereby authorise, by this Order, the schools attended by the children to give each parent information about the child’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates obtained by the children and any newsletters, notices or other correspondence, documents or information relating to the children (at the requesting parent’s cost), however shall not be taken to discharge the parents obligations to keep each other informed of such information.
11. Prior parental consent must be obtained for a child’s overnight stay away from their primary residence. The parent seeking consent must provide the reason for the stay, the address, and the contact details of the supervising adult. Acceptable conditions for such overnight stays include:
a. Accommodation at a children friend’s residence under the supervision of the friend’s parent(s); or
b. Oversight by certified professionals qualified in child supervision.
12. Children are permitted to travel:
a. Accompanied by a parent;
b. In the presence of a designated driver, provided a parent is also present; or
c. With a professional transportation service that is certified and specifically equipped for transporting children.
FAMILY THERAPY
13. The parties shall attend family therapy upon [Mr F] of [D Psychology] (“the Family Therapist”)
14. For the purposes of the family therapy specified in paragraph 13 herein of these Orders:
a. the parties provide all information (including any referral) and complete and sign any and all documentation necessary and required to give effect to the family therapy;
b. the parties attend all scheduled appointments with such appointments to occur as recommended by the Family Therapist;
c. the mother facilitates the attendance of all of the children upon the Family Therapist as directed and recommended by the Family Therapist;
d. the family therapy include the father in any and all consecutive sessions as directed and recommended by the Family Therapist;
e. the parties equally share the cost of any joint sessions they attend with the children; and
f. the parties and/or the children must attend all sessions of family therapy with the Family Therapist as recommended by the Family Therapist unless they otherwise agree the balance of the sessions are no longer necessary or required.
INJUNCTIVE AND OTHER PROVISIONS
15.Pursuant to Section 68B (1) (a) of the Family Law Act 1975 (‘the Act’), the parties be restrained by injunction from:
a.discussing the contents(s) of any document(s) filed in or intended for use in any future legal proceeding in respect of the children other than with the leave of the Court; and
b. saying anything to or in the presence of hearing of the children that is in any way derogatory of the other party or detrimental to the relationship that the other party has with the children.
16. The parties do all acts and things within their power and control to ensure that their domestic partner(s), friends or any member(s) of their extended family, shall not physically discipline the children or saying or doing anything in the presence or hearing of the children that is in any way derogatory of the other party or detrimental to the relationship that the other party has with the children.
(As per the original, emphasis added)
I have highlighted proposed Orders 11 and 12 sought in the father’s Application in a Proceeding filed 21 December 2023 as the remaining matters will be dealt with at the final hearing.
The Minute of Order proposed by the mother as contained in her Outline of Case Document (Interim Hearing) filed 30 January 2024 was as follows:
1.That the Application in a Proceeding filed by the husband on 22 December 2023 be declared an abuse of process.
2.That the Application in a Proceeding filed by the husband on 22 December 2023 be otherwise dismissed.
3.In the alternative, that the Application in a Proceeding filed by the husband on 22 December 2023 be stood over pending the parties attending upon a mediation facilitated by Legal Aid NSW as proposed by the Independent Children’s Lawyer.
4.That the husband pay the wife’s costs of and incidental to the said Application on an indemnity basis.
5.The Court appoints [Dr G] as a single expert child psychiatrist to enquire into and report on the following: -
5.1 Any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the expert thinks are relevant to the weight to be given to the children’s views.
5.2 The nature of the relationship of the children with: -
5.2.1each of the children’s parents;
5.2.2other persons including any grandparent or other relative of the children.
5.3The willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent.
5.4 The likely effect of any changes in the children’s circumstances including the likely effect on the children of any separation from: -
5.4.1 either his/her parents; or
5.4.2 any other child or other person (including any grandparent or other relative of the children) with whom he/she has been living.
5.5 The capacity of: -
5.5.1 each of the children’s parents; and
5.5.2 any other person (including any grandparent or other relative of the children) to provide for the needs of the children including emotional and intellectual needs.
5.6 The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and either of the children’s parents and any other characteristics of the children that the expert thinks are relevant.
5.7 The attitudes to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents.
5.8 Any family violence involving the children or a member of the children’s family.
5.9 A diagnosis, if possible or appropriate, of the mental state of each of the parents/child/children and what treatment/therapy each/either party should undertake.
5.10 Any other fact or circumstance the expert thinks is relevant.
The Minute of Order proposed by the Independent Children’s Lawyer (“the ICL”) in their Case Outline filed 30 January 2024 was as follows:
1. The children live with the mother.
2.The children and mother attend family therapy with [Mr F] of [D Psychology] (‘the Family Therapist’) as directed by the Family Therapist.
3.The father attend family therapy with the Family Therapist as directed by the Family Therapist.
4.The children and the father attend family therapy with the Family Therapist as facilitated by the Family Therapist.
5.The children spend time and communicate with the father as facilitated by the Family Therapist.
6. The father pay the costs of the family therapy.
MATERIALS RELIED UPON
The father relies upon the following documents:
(a)Application in a Proceeding filed 21 December 2023;
(b)Outline of Case Document (Interim Hearing) filed 30 January 2024;
(c)Father’s affidavit filed 21 December 2023;
(d)Affidavit of Ms H filed 19 January 2024; and
(e)Exhibits to the father’s affidavit filed 21 January 2024.
The mother relies upon the following documents:
(a)Case Outline (Interim Hearing) filed 30 January 2024;
(b)Response to an Application in a Proceeding filed 19 January 2024;
(c)Mother’s affidavit filed 19 January 2024;
(d)Affidavit of Ms H filed 19 January 2024;
(e)Reply to Response to Final Orders filed 30 January 2023;
(f)Mother’s affidavit filed 30 January 2023;
(g)Parenting Questionnaire filed 30 January 2023; and
(h)Notice of Child Abuse, Family Violence or Risk filed 30 January 2023.
The ICL relies upon the following documents:
(a)Case Outline filed 30 January 2024;
(b)Assessment and Feedback Report of Dr C dated 21 August 2023.
THE LAW
In considering whether it is appropriate and necessary to make parenting orders, and if so, the nature of those orders, the court must have regard to the “best interests” considerations set out in s 60CC of the Family Law Act 1975 (Cth). This applies whether the proposed orders are interim or final. While there is a mandatory obligation to have regard to the “best interests” considerations, a realistic approach should be taken in the context of interim proceedings: Banks & Banks (2015) FLC 93-637 (“Banks”). The Full Court made it clear that a trial judge does not have to engage in a ritualistic incantation of noting and addressing each of the best interest considerations. As the Full Court pointed out, to do so, risks the judicial officer in potentially “[losing] sight of the forest for the trees”: Banks at [49].
In this matter, the father pressed proposed Orders 11 and 12 of his Application in Proceeding filed 21 December 2023 due to his concern that those orders were necessary to address a risk of harm to the children. This included, most relevantly, as result of the children potentially being in the care of the mother’s close friend, Ms H, who, it is acknowledged, has provided a great deal of assistance to the mother and father in caring for the children when the parties’ relationship was intact and has continued to do so in the period subsequent to the parties separation.
In Bower & Marshall (No 2) (2022) 66 Fam LR 258 at [60]–[62], by reference to relevant authorities, I set out the relevant principles in deciding whether orders are required to protect a child from an unacceptable risk of harm. Essentially, the task involves looking at past events and patterns of conduct with a view to attempting to predict the potentiality of the children being exposed to similar events or conduct in the future. Necessarily, the confidence that one will have in the prediction will be, in substantial part, a reflection of the strength of evidence underpinning the factual findings upon which the prediction of future risk is based.[1] With that said, even a small risk of harm occurring in the future, may be an unacceptable risk if the level of harm that may potentially befall upon a child would be significant.
[1] Bower & Marshall (No 2) (2022) 66 Fam LR 258 at [62(4)], quoting the Hon Richard Chisholm “Unacceptable Risk – A Comparison of the Family Law and Care Jurisdictions” (Paper presented at the Children's Court Conference, Parramatta, 1 September 2010) 15.
CONSIDERATION
As noted, the father presses for the Court to make proposed Orders 11 and 12, as set out in his Application in a Proceeding filed 21 December 2023. The evidence that he relies upon to support his application is relatively limited. The father relies upon paragraphs 55 and 56 of his affidavit filed 21 December 2023, which are as follows:
Potential Risks to Child Safety
55.There was an incident where [X] was placed under the care of [Ms H] at the beach. [X] sustained injuries severe enough to necessitate surgical intervention at raised concerns about the supervision provided to him.
56.Additionally, [Ms H’s] driving licence has been revoked due to driving under the influence of alcohol. Coupled with her record of minor vehicular collisions, her age of 70, and a total absence of child-rearing experience – since [Ms H] is childless – I have grave concerns regarding the safety risks to my child. These concerns pertain to the potential for negligent supervision or the likelihood of a car accident when my child is in the care of [Ms H] without the presence of a parent.
Additionally, the father relies upon paragraphs 2 and 37 of Ms H’s affidavit filed 19 January 2024. Paragraph 2 simply sets out that Ms H is 70 years of age and paragraph 37 is as follows:
37.I am aware that [the father] has now made various allegations including that I have a “tendency to consume excess amounts of alcohol”. It is true that I was charged with driving while intoxicated in […] 2021 which resulted in me being able to drive on the basis that I had an interlock device fitted to my vehicle. I was also fined on the basis that this was my second such offence, the previous one having been in […] 2019. At that time [the father] and [the mother] were still together and [the father] provided a character reference to the Magistrate at the […] Local Court dated […] 2019, a copy of which is attached and marked “A”.
(Emphasis in original)
To be clear, in referring to Ms H’s age, the father explained from the bar table that he was not contending that the children are at risk being in the care of a 70 year old, but that he does hold concerns in circumstances where that person may be intoxicated.
In evaluating the evidence as to risk, I note that the father’s assertions of X sustaining injury at a social occasion at a beach, is general and extremely broad. Ordinary human experience confirms that children may succumb to injuries while taking part in social and recreational activities. There is no evidence of those injuries being sustained as result of reckless, or even negligent conduct on the part of a person in whose care the children are in at the time of sustaining injury. In those circumstances, it is, with respect, illogical to contend, that the children are at future risk of experiencing similar harm. That is, it is illogical to assume that the children are at risk of future injury simply because X sustained injury on a particular occasion.
Accordingly, the evidence presented by the father, to sustain his allegations that the children are exposed to future risk of injury, is insufficient to establish that there is an unacceptable risk that the children will sustain injury in the future.
I appreciate the father’s contention that, in assessing risk, the Court should have regard to the fact that Ms H has a history of consuming excessive amounts of alcohol, such that it may possibly impact upon her ability to care for the children when they are in her care, including when they are in a car being driven by her.
The evidence establishes that Ms H has been found guilty of drink driving.[2] However, the evidence referred to by the father confirms his own assessment that those events were “out of character” for Ms H. Paragraph 37 of Ms H’s affidavit filed 19 January 2024 attaches a character reference provided by the father dated 2019 which relevantly includes the following statements:
·“We consider [Ms H] to be part of our family”
·“[Ms H] almost on daily basis comes to our home in [Suburb J], picks up [the] children from school and drives them to afterschool activities that they could not otherwise attend if she were not available to pick them up from school”
·“By trusting our children to her care, we consider [Ms H] to be the most reliable and trustworthy person”
·“We were shocked because [Ms H’s drink driving charge] seemed so out of character … she drives quite often and never had any issues”
[2] Annexure “A” to Ms H’s affidavit filed 19 January 2024.
There is has been no suggestion of the children being in the care of Ms H at the time of the drink driving offences.
Accordingly, the evidence presented by the farther as to potential risk in Ms H’s care does not raise to the level of establishing an unacceptable risk of harm such that there is justification for making proposed Orders 11 and 12 as set out in the father’s Application in a Proceeding filed 21 December 2023.
Additionally, I respectfully agree with the arguments of both the mother and the ICL that the restraints sought by the father, in those paragraphs, are unsatisfactorily ambiguous and, further, to the extent that they are comprehensible, are entirely impractical.
ORDERS
The Court therefore orders that proposed Orders 11 and 12 sought in the father’s Application in a Proceeding filed 21 December 2023 be dismissed.
In circumstances where I was not addressed by the parties in respect to costs, I will reserve that question to be decided at the final hearing.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 19 February 2024
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