Belton & Kreiter

Case [2024] FedCFamC1F 70

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 2023 21 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)…

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AGLC
Belton & Kreiter [2024] FedCFamC1F 70
Case
[2024] FedCFamC1F 70
Decision Date

CaseChat Overview and Summary

In the matter of Belton & Kreiter, the Federal Circuit and Family Court of Australia (Division 1) was tasked with determining the interim parenting orders concerning the children of the parties, Mr Kreiter and Ms Belton. The primary dispute centered on the children's resistance to spending time with their father and the father's application for specific conditions to be met if the children were not in the care of either parent. These conditions included the requirement for professional supervision and the stipulation that the children could only travel if accompanied by a parent or a certified transportation service specifically equipped for transporting children. The court was required to assess the necessity of these conditions to protect the children from any unacceptable risk of harm.

The legal issues before the court included whether the proposed interim orders were justified based on the evidence presented. The father argued that there were significant safety concerns, particularly related to the supervision of the children by Ms H, a 70-year-old individual with a history of alcohol-related driving offenses. The court considered the principles articulated in Bower & Marshall (No 2), which emphasize the importance of examining past events and patterns of conduct to predict potential future risks to the children. The court had to balance the father's concerns against the need to make decisions in the best interests of the children, considering both the likelihood and severity of any potential harm.

The court found that the father's evidence was relatively limited and did not sufficiently establish an unacceptable risk of harm that would warrant the proposed conditions. The concerns about Ms H's supervision were not deemed sufficient to justify the stringent measures proposed by the father. Consequently, the court dismissed the proposed Orders 11 and 12, which sought to impose the specific conditions on the children's supervision and travel. The remaining orders were stood over until the final hearing. The court reserved the decision on costs until the final hearing.

The court's final order dismissed the proposed Orders 11 and 12 from the father's Application in a Proceeding filed on 21 December 2023 and reserved the costs for determination at the final hearing. This decision reflects the court's careful consideration of the evidence and the need to protect the children's best interests while ensuring that any interim orders are proportionate and justified.

Orders

Orders of the court

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 2023 21 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.

Background

Background to the litigation

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 proceedings2.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 Responsibility1.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/oriii. 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; andc. 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 Arrangements4. 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; andd. 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 parents5. 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); orb. 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; orc. With a professional transportation service that is certified and specifically equipped for transporting children.FAMILY THERAPY13. 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; andf. 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 PROVISIONS15.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; andb. 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)

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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 Safety55.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)