Bartram & Marsden
[2023] FedCFamC1A 207
•23 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Bartram & Marsden [2023] FedCFamC1A 207
Appeal from: Bartram & Marsden [2023] FedCFamC1F 644 Appeal number: NAA 245 of 2023 File number: SYC 6927 of 2019 Judgment of: MCCLELLAND DCJ, AUSTIN & KARI JJ Date of judgment: 23 November 2023 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the parties and Independent Children’s Lawyer settled majority of issues in dispute by consent at final hearing – Where the primary judge determined that the mother should be granted sole parental responsibility of the children – Where the father appeals consent orders made at final hearing on the basis that he did not appreciate their import or effect despite being represented at the time – Where the father disputes that he was a perpetrator of family violence during the parties’ relationship – Where the father has a history of poor mental health – Where the grounds of appeal are incompetent and fail to establish appellable error – Where the father’s Summary of Argument is inadequate – Short form reasons delivered pursuant to s 36(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – Appeal dismissed. Legislation: Family LawAct 1975 (Cth) Part VII
Federal Circuit and Family Court of Australia Act2021 (Cth) s 36(2)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.23
Cases cited: Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
HJ Heinz Company Australia Ltd v Turner [1998] 4 VR 872
House v the King (1936) 55 CLR 499; [1936] HCA 40
Kyriackou v Law Institute of Victoria Ltd (2014) 45 VR 540; [2014] VSCA 322
Nimesh Watapaldeniya v Transport Accident Commission [2022] VSCA 50
Newett & Newett (No 2) (2021) FLC 94-051; [2021] FedCFamC1A 11
State of Victoria v Bacon [1998] 4 VR 269
Number of paragraphs: 29 Date of hearing: 23 November 2023 Place: Sydney The Appellant: Litigant in person Counsel for the Respondent: Mr Reeves Solicitor for the Respondent: Hillcrest Family Lawyers Pty Ltd Counsel for the Independent Children’s Lawyer: Submitting Notice filed 26 September 2023 ORDERS
NAA 245 of 2023
SYC 6927 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR BARTRAM
Appellant
AND: MS MARSDEN
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
MCCLELLAND DCJ, AUSTIN & KARI JJ
DATE OF ORDER:
23 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The appeal is dismissed.
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 Bartram & Marsden has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTMCCLELLAND DCJ:
This appeal concerns the parenting arrangements for the parties’ children, X, aged six and Y, aged four. By his Amended Notice of Appeal filed 25 October 2023, the appellant father appeals the orders of the primary judge made on 14 August 2023.
Following the completion of the evidence at final hearing and prior to the respective submissions of counsel for the parties and solicitor advocate for the Independent Children’s Lawyer (“the ICL”), the parties resolved the majority of the dispute by consent. The matters remaining for the primary judge to adjudicate on were restricted to the issues of parental responsibility, the time that the children would spend with the father, the location of changeover and whether the respondent mother should be permitted to take the children overseas.
The consent orders made on 14 August 2023, inter alia, provided for the children to live with the mother (Order 1) and to spend time with the father on a week about school holiday regime. The father was to do all acts and things necessary to enrol in a men’s behavioural change course (Order 8) and to maintain a standing appointment with his psychiatrist for a six-monthly review of his mental health (Order 12). The parties were restrained from removing the children from the Sydney area (Order 24).
The primary judge further ordered that the mother should have sole parental responsibility (Order 25) and that the children would spend time with the father during the school term as a four night per fortnight regime every alternate weekend together with overnight on Wednesdays after school (Order 29). Changeover was to occur at F Shopping Centre (Order 35). Additionally, the mother was permitted to obtain passports for the children (Order 36) and the children were permitted to travel to the United Kingdom with the mother for the Term 4 school holidays in 2023 and 2024 (Order 37 and Order 38). Thereafter, both parties were permitted to travel overseas with the children (Order 40).
The father now appeals the orders made by consent at final hearing as well as the orders providing for the location of changeover and the orders concerning overseas travel.
For reasons which follow, I propose that the appeal be dismissed.
BACKGROUND
The mother is now aged 41 years. The father is now aged 37 years.
In the period between 2012 and 2014, the father experienced mental health challenges resulting in several hospital admissions and engagement with community support services. It was not in contest that, at the time of the commencement of the parties’ relationship, the father had not advised the mother of his past mental health issues (at [16]).
The primary judge found the parties commenced their relationship in 2016 and began cohabitation in early 2017. The parties separated on a final basis in 2019. It was on that date that the mother left the former matrimonial home with the children. At the time of separation, X was almost two years of age, and Y was three weeks of age.
A significant issue in the proceedings concerned the father’s mental health. The primary judge accepted evidence presented by the father’s treating psychiatrist, Dr E, that, at the time of the hearing, the father was not suffering from any current psychiatric condition, and, at that time, the father was in good mental health (at [18]). However, in his report dated 20 July 2020, Dr E opined, that the father’s “prognosis is uncertain” and that the father “would be at some risk of relapse in the long term”. To address that potentiality, Dr E recommended that the father continue to consult with him every three months, if, at any stage, he was to experience a relapse in his mental health challenges.
Nonetheless, prior to the commencement of the hearing, consistent with the recommendations of Dr G, the single expert appointed in this matter, the father consented to orders that he continue to be reviewed every six months in respect to the state of his mental health (Order 12). Those orders were considered to be appropriate by the primary judge so as “to manage the low but relevant risk presented by the father’s historical mental health issues” (at [17]). The orders included the mother being advised of any symptoms of possible relapse, and if the father failed to attend upon any scheduled appointments (Order 13).
On 7 April 2021, interim orders were made for a gradual increase for the children to spend time with the father. This eventually resulted in the children spending time with the father each Saturday from 9.00 am until 5.00 pm and from 4.00 pm Wednesday overnight, until the commencement of daycare. Those orders applied from February 2022. Consent orders were entered into on 15 September 2022 for the children to spend time with the father from after school on Wednesday until before school or daycare on Thursday to allow for X’s commencement of Kindergarten. Those orders were subsequently dealt with in the spend time arrangements in the challenged orders.
The parties and the ICL had the benefit of a Child Dispute Conference Memorandum dated 23 October 2019, a report of Dr G dated 5 November 2020 and the Family Report dated 28 March 2023. Reports from the father’s treating psychiatrist, Dr E, dated 30 September 2019, 8 December 2019 and 20 July 2020 were also tendered without objection.
The final hearing proceeded over four days in April 2023 with judgment delivered on 14 August 2023.
At the commencement of the hearing, the following issues were resolved by consent:
(a)That the children will live with their mother;
(b)That the children will spend time with their father during school term (although no agreement reached as to whether it is three or four days a fortnight or the configuration of the weekend days);
(c)That there will be some progression of time spent with their father over the school holiday periods and on particular special days (although there was no agreement on that progressing past five nights in any block);
(d)That the father will undertake regular medical reviews with his treating psychiatrist and attend a men’s behaviour course;
(e)As to the means of communication between the parties; and
(f)Certain orders in respect of restraints, injunctions and courses to be undertaken.
The remaining orders which are the subject of appeal were adequately explained in the reasons for judgment delivered by the primary judge on that day.
GROUNDS OF APPEAL
The grounds of appeal are set out in the appellant’s Amended Notice of Appeal filed 25 October 2023 as follows:
1.Consent order 8 and 9 states that the father complete a “mens bahavior course. Order 29B, C and order 30 state that the chidlrens time with the father increases during the svhool holidays if orders 8 and 9 are complied with. The father would like this orders to be removed. At the time of writing this amended appeal there has been no opportunity afforded to the father to complete an assessment run by [B Support Services] with regards to the Men’s behaviour course that has been ordered by consent. It is the fathers opinion that he was not informed as to who this course is targetted towards. Specifically the father was not told that the course was for Men who have particpated in domestic violence. It is the fathers opinion that had he been told this, then he would not have given consent for the order to be made. The father was not informed that the course could not be completed for a 12 month period, which is causing a significant delay in allowing him to spend more time with his children. It was the fathers opinion that the course was “another hoop” that needed to be jumped through to spend time with his chidlren and he didn’t anticapte the lebgth of time it would take. The Father intends to inform [B Support Services] during the assessment that there was no domestic violence perportated by him during, nor after his relationship. The father has already informed [B Support Services] that there is no AVO or domestic violence order in place nor has there ever been one for the entirety of his life. The father intends to inform [B Support Services] that a four day trial was completed and the findings by the court gave no weight the [the mother’s] accussations of violence she has alledged since the father began proceddings to have contact with his two children
2.Order 1 is a consent order and states that the chidlren live with the mother. The father would like to appeal this order, he made it clear during the trial that he did not consent for the chidlren to live with their mother until they are 18, which is what this order states.
3.Order 3 A, B and C are consent ordes and state that the chidlrens time with the father increases gradually during school hiolidays. It results in a significant time apart from the chidlren. For example, 3a will result in the chidlren not seeing the father for a period of two to three weeks. The father didn’t consent to having such a significant amount of time amount from each other.
4.Order 2 is a consent order which states that the parents can reach an agreement to spend time with each of the chidlren when they make an agreement in writing. This order has been in place for the duration of these proceedings, The father is concerned that this order gives directions to the mother that she wouldn't have been able to make an agreement without this order being in place. For example, the Mother had the opportunity to allow the chidlren to spend time with the father prior to the first interim hearing in November 2019. The mother could have also agreed to increase the time with the children before the there was a requirement for the third ineterim hearing where she requested that the father lodge an application with the court to spend more time with his children.
5.Order 16 is a consent order which states that the Father be restrained from requesting infromation to the mother’s residence from any person or organisation whom he knows holds her address. The chidlren have pointed to the location of where they live on many occasions when the Father has picked them up from school and day care, the first occurring over two years ago.This order gives the impression to anyone who reads it that domestic violence has be perportated by the father. Recently this assumption has been made by [FF Childcare Centre] when the Father requested information on the procedure of enrolling a child. He would like this order removed..
6.Order 35 states that the chidlren be transferred between the parents at [F Shopping Centre]. Order 20 states the parents are restrained from discussing the proceedings with the chidlren. The father will be unable to meet provide a rational reason as to why the chidlren have to meet a [F Shopping Centre] each week. [F Shopping Centre] is not located near either of the parents homes. The family report writer siggested “a neutral venue”, tha father doesn’t undertand what that means espically when there has been no domestic violence found to be purportated by either party
7.There are several orders that have been made under the heading of “overseas travel”. Order 39 states that the time with the chidlren be suspended when the chidlren spend three weeks in [United Kingdom] during the long holiday period in 2023/2024. Order 38D states that the chidlren shall communicate by video call twice per week while they are in [United Kingdom] for three weeks. The father has requested the Mothers opinion and feelings about facilitating these phone calls and there has been no response. It is the fathers opinion that these phone calls will be used to give reason to the mother and chidlren not returning to Australia. The father is aware that he can then lodge and pay for an application to have the chidlren to return to Australia, but he would prefer to avoid such a sitiation. It is the Father’s opinion that the three week trip will be used to alenatie, estrange and isolate the chidlren from Austarlia and their family.
8.Order 40C states that overseas travel only occurs when the chidlren are otherwise in the care of the travelling parent. This order would result in both parents only able to take the chidlren oversease for a maximum one week period and it contradicts order 40A.
9.There isn’t an order which informs the mother that she gives a copy of passports to the father. The Father is unable to book travel without the passport numbers. It is the Fathers concern that the Mother won’t encourage the chidlren to be overseas with the Father for a 21 day period.
(As per the original)
CONSIDERATION
The grounds of appeal are incompetent as failing to establish an appellable error
There is, with respect, substance in the submission of counsel for the mother that, as framed, the appeal is incompetent as not identifying a valid ground of appeal. In those circumstances, and where the appeal does not raise any question of general principle, I give short form reasons pursuant to s 36(2) of the Federal Circuit and Family Court of Australia Act2021 (Cth).
It is important for an appellant to properly particularise the asserted error which they contend was made by the primary judge.[1] In circumstances where the primary judge was exercising a broad discretion reposed by Part VII of the Family LawAct 1975 (Cth), this requires the identification of an error of principle, or a material error of fact, or, if no specific error can be identified, demonstration that the decision is “unreasonable or plainly unjust”: House v the King (1936) 55 CLR 499 at 505 (“House v The King”).
[1] See, for example, State of Victoria v Bacon [1998] 4 VR 269 (Phillips JA); HJ Heinz Company Australia Ltd v Turner [1998] 4 VR 872; Kyriackou v Law Institute of Victoria Ltd (2014) 45 VR 540.
The grounds of appeal firstly identify a number of orders that were made by consent. The primary complaint of the father appears to be that he agreed to those orders without appreciating their import and/or effect. This is despite the fact that, at all relevant times during the course of the hearing, including at the time that he entered into consent orders, he was represented by a well-known and respected firm of solicitors that regularly practices in the area of family law.
More generally, the grounds of appeal fail to set out “a specific and concise statement of the point sought to be argued by the applicant”: Nimesh Watapaldeniya v Transport Accident Commission [2022] VSCA 50 at [2]. The grounds of appeal contend that a number of orders were, in the opinion of the father, inappropriate, or, which he finds objectionable. However, no House v the King error is identified nor do the grounds identify where a miscarriage of justice has occurred as a result of the manner in which the proceedings were conducted.
The problem is compounded by the fact that the father’s Summary of Argument filed 25 October 2023, further clouds rather than clarifies the father’s grounds of appeal. In that respect, r 13.23(2)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) requires that a summary of argument must:
set out each ground of appeal and, for each ground of appeal, a statement of the arguments setting out the points of law or fact and the authorities relied on (together with references to the relevant pages of the appeal book and transcript)
Insofar as the father contends that the primary judge made errors of fact, it is also relevant that, pursuant to r 13.23(3) of the Rules, a summary of argument must:
(a) identify the error (including any failure to make a finding of fact); and
(b) identify the finding that the party contends should have been made; and
(c) state concisely why the finding, or failure to make a finding, is erroneous; and
(d)refer to the evidence to be relied on in support of the argument (including any reference to the relevant pages of the appeal book and transcript).
As has been noted on many occasions by this Court, an appellate court cannot be expected to rummage through the broadly expressed contentions and arguments that are set out in an appellant’s summary of argument with a view to distilling a specific and concise ground or grounds of appeal: Newett & Newett (No 2) (2021) FLC 94-051 at [34] quoting Bahonko v Sterjov (2008) 166 FCR 415 at [3].
The father’s Summary of Argument sets out, what is in the nature of a chronology, or as described by the father himself, a timeline of what the father contends to be relevant events. Some of those events, he contends, were not considered by the primary judge. No reference is made, however, to where the relevant evidence was presented or how the particular factual contentions set out in the father’s Summary of Argument may have been relevant to the outcome of the proceedings or why the orders which are the subject of the appeal are erroneous.
For these reasons the appeal must be dismissed.
AUSTIN J:
I agree with the order proposed and reasons given by McClelland DCJ.
KARI J:
I also agree with the orders proposed and the reasons of McClelland DCJ.
MCCLELLAND DCJ:
Accordingly, the order of the Court will be that the appeal is dismissed.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Deputy Chief Justice McClelland and Justices Austin & Kari. Associate:
Dated: 30 November 2023
5
5
3