Bartram & Marsden

Case [2023] FedCFamC1F 644

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Bartram & Marsden [2023] FedCFamC1F 644

File number(s): SYC 6927 of 2019
Judgment of: CURRAN J
Date of judgment: 14 August 2023
Catchwords: FAMILY LAW – PARENTING – whether an order should be made for equal shared parental responsibility – where the parents have no capacity to communicate – where the father has a history of poor mental health - whether the father’s mental health poses a risk to the children – where there are allegations of coercive and controlling family violence – whether the father’s conduct amounts to family violence under the Act – whether the father’s time with the children should occur each Saturday – whether orders should be made to permit overseas travel – whether overseas travel should be prohibited until the children attain an older age – whether the mother should be permitted to apply for passports for the children – where orders made for sole parental responsibility – where orders made permitting the children to travel overseas
Legislation:

Australian Passports Act 2005 (Cth) s 11

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61B, 61DA, 64B 68B, 68C, 65DAA, 65DAC, 65Y

Hague Convention on the Civil Aspects of International Child Abduction  
Cases cited:

Amador & Amador (2009) 43 Fam LR 268

Briginshaw v Briginshaw (1938) 60 CLR 336

Carter & Wilson [2023] FedCFamC1A 9

Eagleton & Eagleton [2019] FamCA 894

Fitzwater v Fitzwater (2019) 60 Fam LR 212

Halifax & Fabian [2010] FamCA 1212

Illgen & Yike [2018] Fam CA 17

Isles & Nelissen (2022) 65 Fam LR 288

Jones v Dunkel (1959) 101 CLR 298

Keenan & Keenan [2023] FedCFamC1F 186

M v M (1988) 166 CLR 69

Marvel & Marvel (2010) 43 Fam LR 348

Olivier & Olivier [2020] FamCA 639

Ramzi & Moussa [2022] FedCFamC2F 1473

Division: Division 1 First Instance
Number of paragraphs: 279
Date of hearing: 11-14 April 2023
Place: Sydney
Counsel for the Applicant: Mr Richardson
Solicitor for the Applicant: Lander & Rogers
Counsel for the Respondent: Mr Reeves
Solicitor for the Respondent: Hillcrest Family Lawyers Pty Ltd
Solicitor Advocate for the Independent Children’s Lawyer: Ms Karagiannis
Solicitor for the Independent Children’s Lawyer: Legal Aid NSW

ORDERS

SYC 6927 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR BARTRAM

Applicant
AND:

MS MARSDEN

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

CURRAN J

DATE OF ORDER:

14 AUGUST 2023

THE COURT ORDERS BY CONSENT THAT:

1.The children live with the mother.

2.The children spend time with the father at any times not specified in orders of the court as agreed between the parties in writing.

School Holidays

3.Commencing from term 1 2024 the children shall spend time with their parents during school holidays as follows, provided the father has complied with Orders 12 to 14:

(a)In the school holiday period immediately following the father’s compliance with Orders 8 and 9, with the father from Friday after school (or 3pm on a non-school day) to Monday…

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AGLC
Bartram & Marsden [2023] FedCFamC1F 644
Case
[2023] FedCFamC1F 644
Decision Date

CaseChat Overview and Summary

The case of Bartram & Marsden involves the dispute between Mr Bartram, the father, and Ms Marsden, the mother, concerning the parenting arrangements for their two children. The primary dispute centres on the allocation of parental responsibility and the specific time-sharing arrangements for the children post-separation. The matter was heard in the Family Court of Australia. The central legal issues pertained to determining the appropriate parental responsibility arrangements and the specific time-sharing schedules that best serve the children’s welfare. This included evaluating the parents' ability to communicate and cooperate, the father’s mental health history, and the allegations of coercive and controlling behaviour.

The court meticulously examined the evidence presented, including the expert opinions on the father's mental health and the parents' capacity for communication and cooperation. The court found that the parents had significant difficulties in communicating and making joint decisions, exemplified by their handling of the children’s speech therapy needs. The mother’s genuine concerns about the father's past aggressive behaviour and mental health were substantiated, leading the court to conclude that the mother was not exaggerating or fabricating her fears for the children’s safety. The court emphasised the importance of ensuring the children are not exposed to coercive and controlling behaviours, and that the father’s mental health history, while not currently impairing, warranted ongoing psychiatric review.

The Family Court of Australia ruled that the children’s best interests would be served by awarding sole parental responsibility to the mother, with specific time-sharing arrangements for the father that included regular psychiatric reviews and mandatory participation in a Men’s Behaviour Change course. The court ordered that the father’s time with the children would be supervised by the paternal grandmother on the initial overnight occasions to ensure the children’s safety and well-being. The detailed orders also included provisions for the children’s special occasions and communication protocols between the parents.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The mother sought orders for sole parental responsibility and that the father spend time with the children three nights each fortnight in a block each alternate weekend from Friday to Monday, subject to regular psychiatric reviews and completion of a Men’s Behaviour Change course. The ICL essentially sought orders to the same effect as the mother’s application. The father consented to orders for regular psychiatric review and to undertake the course. The father sought orders for equal shared parental responsibility; to spend time for four nights each fortnight, but the time occur each weekend plus alternate Wednesday nights and increasing school holiday time. BACKGROUND X and Y are the children of the applicant father, Mr Bartram (“the father”) and the respondent mother, Ms Marsden (“the mother”). The parents commenced a relationship in mid-2016 and began cohabitation in early 2017. The parties separated on a final basis on 27 August 2019. The children currently spend time with their father each Wednesday overnight and on Saturday for the full day, in accordance with current Orders of a Senior Judicial Registrar dated 7 April 2021. On Wednesdays, changeover occurs at the school and childcare centre. On Saturdays, the changeover occurs at a train station. The mother left the former matrimonial home with the children on 27 August 2019. At the time of separation, the children were under three years of age. There has been no family violence orders made in this matter and no casework involvement from the Department of Communities and Justice (“the Department”). Proceedings were commenced by the father by way of filing an Initiating Application on 15 October 2019. Interim orders were made on the following dates as set out below, on each occasion increasing the time the father spends with the children. On 13 November 2019, a Senior Registrar (as he then was) made interim orders for the children to spend time with the father each Saturday for two hours, supervised by the paternal grandmother. On 17 December 2019, the Senior Registrar made interim orders for the children to live with the mother and spend time with the father three times per week for two hours on each occasion, to be supervised by the paternal grandmother. On this occasion an independent children’s lawyer (“ICL”) was also appointed. On 7 October 2020, the Senior Registrar, in dealing with the father’s application in a proceeding filed on 7 September 2020 in which he sought orders for increasing time with the children, made interim orders that the children spend time with the father each Saturday and Sunday from 9am until 1pm, for two hours each Wednesday afternoon, and from 9 am until 2pm on Christmas day that year, supervised by the paternal grandmother. On 7 April 2021, a Senior Registrar (as she then was) made interim orders that the children spend time with the father: for a period of six weeks from 9am until 2pm each Saturday and two hours each Wednesday afternoon; after that six week period from 9am until 5pm each Saturday and two hours each Wednesday afternoon; and from February 2022 from 9am until 5pm each Saturday and from 4pm each Wednesday until 10am each Thursday, with the paternal grandmother to attend on the first six occasions of overnight time. The Senior Registrar also made orders for the father to have time with the children on their birthdays and on Christmas day.

Evidence

Evidence Before The Court

The court child expert gave oral evidence at the hearing and identified the main concern she had in relation to the coercive and controlling behaviour alleged, was that the children not be “used as messengers” as this could cause stress for the mother that might impact on her parenting capacity and it could be confusing for the children. The consultant opined that communication can be used as a tool of coercion and control. She agreed with the proposition that if the court finds the father was using childcare and speech therapy to denigrate the mother and criticize her parenting she would consider that to be coercive or controlling behaviour.Evidence of the father’s treating psychiatrist - Dr E Dr E is a psychiatrist of many years’ experience in private practice who provided three reports in this matter dated 30 September 2019, 8 December 2019, and 20 July 2020. Dr E’s report of 30 September 2019 recounts the father’s mental health history including his admissions to hospital in 2012 and 2013. The report records that the father attended Dr Q, psychiatrist following separation on account of the mother’s concerns for his mental health on 25 August 2019. He notes that on this occasion the father was prescribed medication for anxiety, which he took for 8 days only. Dr E saw the father on 18 September and reported him as being “anxious, missing his children terribly, but not psychotic.” Dr E opined that the father “is not currently impaired. He is not suffering from a mental illness…. He requires no psychiatric treatment currently.” He also noted that it appeared the father probably suffered from a mental illness in 2013. The report concludes with the sentence “I am happy to treat [Mr Bartram] if necessary, but at this stage he is not ill and needs no treatment.” The short report of Dr E dated 8 December 2019 reports that, after seeing the father on 6 December 2019, there had been no change and that “He is not at risk of deliberate self-harm or harm to others, including his children.” The report of Dr E dated 20 July 2020 states that there is “nothing significant to add” to the previous reports provided. The report records that the “prognosis is uncertain. He has not had a recurrence of his illness since 2013” and that the father “would be at some risk of relapse in the long term, a risk that is higher than that of the general population, though that risk could still be low.” Dr E recommended that the father sees him for a review every three months and at any stage if he were to relapse. Given the Dr E’s evidence and opinion of Dr G referred to above, the orders sought by consent about the father’s ongoing attendance upon his treating psychiatrist ameliorate the risk identified and are in the children’s best interest. ORDERS SOUGHT BY THE PARTIES Other than the orders made by consent contained at the forefront of these reasons, the parties sought orders as described below. Applicant Father The father sought orders for the parties to share equal shared parental responsibility, for the children spend time with him from after school on Friday until 10am on Sunday in Week 1 and from after school Wednesday until before school on Thursday and from after school Friday until 5pm on Saturday in week 2. The time he sought is four nights per fortnight occurring alternate Wednesdays and every weekend. He sought that changeovers not occurring at school or day care take place at P Shopping Centre, that the maternal grandmother not attend changeover, certain communication and special occasion orders, and there be restraints on the children’s travel overseas, including that the parties cannot apply for a passport for the children until Y turns 10 years old. Independent Children’s Lawyer

Decision

Reasons for decision

These examples show that both parties have had inflexible approaches at times and have ongoing difficulties with communication. The evidence of events from separation and increasing from late 2022 and early 2023 set out in both parties’ evidence, supports the finding that I make that there has been a decline in the capacity and willingness of the parties to communicate. The evidence supports the finding that the parent’s communication is poor and unlikely to improve.Inability of parties to consult or come to joint decisions There was no evidence of the parties having the ability to consult or come to a joint decision. In fact the overwhelming evidence supports a finding of an ongoing inability of the parents to consult or come to joint decisions. The most compelling example was the way the parents dealt with X’s speech therapy. The evidence is not in contest that X required speech therapy and the parties’ communication about the issue was so conflictual that each parent ultimately engaged a separate speech therapist to work with X. This led to X having two therapists at once for a period of time until it was ceased for a period. Unsurprisingly there developed confusion over the appropriate treatment for X. This situation highlights the extent of the inability to consult or arrive at joint decisions between the parents and that their inflexibility when it came to compromise led to X not receiving consistent and focussed speech therapy but therapy from two different therapists. This cannot have been in his best interests. The mother’s evidence was that she found communication with the father difficult and stressful and they did not have an ability to reach decisions jointly. When pressed to provide an example of an ability to reach decisions jointly the only example the father was able to give in cross-examination was ironically, the decision was that each would engage their own speech therapist for X resulting in X having multiple speech therapists. This is an example of inability to consult and reach a joint decision.The mother’s fear of the father The mother reported to the court child expert, and maintained in her evidence, that the father’s conduct had in the past, and continued to, cause her fear. The father did not accept that she was fearful. The father’s view was that the mother was disingenuous in her claim of alleged fear. When specifically asked in cross examination whether he accepted the mother was fearful he did not. The father additionally complained that the mother had been opportunistic in relation to his mental health record, it was submitted on his behalf that “his mental health has been weaponised” by the mother in order for her to achieve an outcome that she seeks from these proceedings. For the reasons that follow I find that the mother’s evidence about her fear both at the time of separation and ongoing is genuine. I find the mother’s concerns about the father’s mental health posing a risk to the children were also genuine and I note the orders made by consent for psychiatric review were supported by the opinion of the single expert and provides a strong foundation that the mother’s concerns given his mental health history, had a reasonable basis.

Ratio Decidendi

Legal Principle Established

I am satisfied on the balance of probabilities that the mother was concerned and frightened by the father’s behaviour, she had discussed her concern with her mother, Ms R, the paternal uncle and the child health nurse which is corroborated by the clinical notes. The Separation- the father’s assertion the mother weaponised his mental health history I accept the mother’s evidence that she was genuine in her fear and concerns at the time she left the home, and that she was not concocting or exaggerating fear so as to keep the boys from their father or to achieve an end in this litigation as suggested by the father in his evidence. The mother left the home on 29 August 2019 with two very young children, and sought refuge and assistance from a women’s refuge, where she resided until she obtained a private rental in late 2019. The fact that the mother left the father covertly was considered to be significant by the family consultant, and suggested to her that the mother was fearful. The father could not accept the mother was fearful even when put to him that her actions in leaving in the circumstances she did would suggest that she was frightened. The mother reported to the court child expert that she had contacted mental health services towards the end of the relationship prior to her discovery of the father’s history of mental health issues. As referred to above I accept that evidence. I accept the mother’s evidence that she held genuine concerns about his behaviour which she found frightening and concerning and that she was not “weaponising” his mental health history to gain some advantage in this litigation. The mother deposed that she raised her concerns about the father’s behaviour and mental health with his mother and his brother who brushed off her concerns by saying words to the effect of “just stay in your room when he gets this way” and “he gets this way - he’s got mood issues”. A document purported by the mother’s counsel to be authored by the paternal grandfather following a family meeting to discuss the father’s health is dated 29 August 2019 and records that “[Ms H] advised from time to time in the last 12 months, [Ms Marsden] had stated that she was sometimes brought to tears with [Mr Bartram’s] behaviour.” When this was put to the paternal grandmother in cross-examination she said she could only recall one occasion where the mother was crying but that she didn’t know what she was crying about. The paternal grandfather had died before the trial and could not be called as a witness. The objective circumstances support the mother’s contention that she was genuinely fearful. I place weight on the circumstances at the time of the mother’s decision to leave the home. I find that she was fearful and concerned by the father’s behaviour which she subjectively found to be frightening. I accept the maternal grandmother’s evidence of the father that she also experienced as frightening. I find that the father was aware that the mother would likely find aggressive conduct distressing and intimidating, as he knew from the time of her panic attack following the cake incident in 2017(referred to below) that as he put it, “she couldn’t handle it.” I find that the mother did not at that time “weaponise” his mental health history or exaggerate or make up fear as suggested, but was genuine in her subjective experience as she reported it.