Bartram & Marsden

Case [2023] FedCFamC1A 207

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 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

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…

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AGLC
Bartram & Marsden [2023] FedCFamC1A 207
Case
[2023] FedCFamC1A 207
Decision Date

CaseChat Overview and Summary

The appeal was brought by Mr Bartram against Ms Marsden, concerning the parenting arrangements for their two children. The primary judge had determined that the mother should be granted sole parental responsibility of the children, a decision that Mr Bartram sought to appeal. Mr Bartram argued that he had not understood the implications of the consent orders made at the final hearing and disputed that he had been a perpetrator of family violence during his relationship with Ms Marsden. Additionally, he raised concerns about his history of mental health issues.

The court had to decide whether the grounds of appeal were sufficient to establish an appellable error. The court noted that the father’s grounds of appeal were incompetent as they failed to establish any such error. Furthermore, the father’s Summary of Argument was deemed inadequate, lacking in necessary detail and legal citation. The court also found that the father had not been a party to any domestic violence and had no history of perpetrating such violence.

The court dismissed the appeal, noting that the father’s arguments did not meet the threshold for establishing an error warranting an appeal. The reasoning of the primary judge was upheld, and the orders concerning the children’s living arrangements and contact with the father were maintained. The appeal was dismissed, and no further orders were made.

Orders

Orders of the court

NAA 245 of 2023

SYC 6927 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

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.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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)CONSIDERATIONThe grounds of appeal are incompetent as failing to establish an appellable error