Bartram & Marsden (No 2)

Case [2024] FedCFamC1A 243

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Bartram & Marsden (No 2) [2024] FedCFamC1A 243

Appeal from:  Bartram & Marsden (No 2) [2024] FedCFamC1F 574
Appeal number(s): NAA 237 of 2024
File number(s): SYC 6927 of 2019
Judgment of: RIETHMULLER, KARI & CHRISTIE JJ
Date of judgment: 16 December 2024
Catchwords: FAMILY LAW – APPEAL – Contravention – Summary dismissal – Where judgment is not a “prescribed judgment” pursuant to reg 4.02 of the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) – Leave to appeal not required – Where appellant asserts primary judge erred in concluding compliance with Orders 8 and 9 were preconditions for spending time in Orders 29(a) and Order 29(c) – Where appellant argues primary judge erred in summarily dismissing application due to lack of evidence – Primary judge erred in determining compliance with Order 8 and Order 9 were preconditions for time in accordance with Order 29(a) – Primary judge’s intention was for Orders to function methodically upon preconditions being satisfied – Orders amended to reflect intention of primary judge pursuant to the slip rule – Appellant failed to provide prima facie evidence – No grounds of appeal challenging orders established – Appeal dismissed.
Legislation:

Family Law Act 1975 (Cth) s 64B

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28

Family Law Regulations 1984 (Cth) reg 15A

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13

Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) reg 4.02

Cases cited:

Adler & Parrow [2024] FedCFamC1A 192

Bartram & Marsden [2023] FedCFamC1F 644

Bartram & Marsden (No 3) [2024] FedCFamC1F 825

Baynor & Emmitt [2024] FedCFamC1A 164

Daily & Daily (No 2) (2023) FLC 94-151; [2023] FedCFamC1A 122

DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17

Ebner & Pappas (2014) FLC 93-619; [2014] FamCAFC 229

Jess & Jess (No 5) (2024) FLC 94-190; [2024] FedCFamC1A 85

Kettle & Baker [2014] FamCAFC 85

Kovacs & Graham [2015] FamCAFC 98

Markes & Markes (No 2) (2019) 59 Fam LR 558; [2019] FamCAFC 96

Newett & Newett (No 8) (2023) FLC 94-128; [2023] FedCFamC1A 7

Nootkamp & Brulja [2023] FedCFamC1A 90

Peake & Cousins [2019] FamCAFC 55

Re Luck (2003) 203 ALR 1; [2003] HCA 70

Trewitt & Brock [2021] FedCFamC1A 9

Number of paragraphs: 42
Date of hearing: 9 December 2024
Place: Heard in Sydney, delivered in Adelaide (via video-link
The Appellant: Litigant in person
Counsel for the Respondent: Mr Robertson
Solicitor for the Respondent: Hillcrest Family Lawyers Pty Ltd
Solicitor for the Independent Children's Lawyer: Did not participate

ORDERS

NAA 237 of 2024
SYC 6927 of 2019

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

MR BARTRAM

Appellant
AND:

MS MARSDEN

Respondent

ORDER MADE BY:

RIETHMULLER, KARI & CHRISTIE JJ

DATE OF ORDER:

16 DECEMBER 2024

THE COURT ORDERS THAT:

1.Order 29(c) of the Orders made 14 August 2023 be amended…

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AGLC
Bartram & Marsden (No 2) [2024] FedCFamC1A 243
Case
[2024] FedCFamC1A 243
Decision Date

CaseChat Overview and Summary

The case of Bartram & Marsden (No 2) involves the appellant father, who appeals against the summary dismissal by the primary judge of five Contravention Applications against the respondent mother. These applications alleged 59 contraventions of various parenting orders made by Curran J in August 2023. The parenting orders in question relate to the terms under which the appellant can spend time with the children. The appeal concerns the interpretation of the parenting orders and the appellant's compliance with certain conditions, particularly those outlined in Orders 8 and 9, before exercising visitation rights as per Orders 29(a) and 29(c). The primary issues for the court to decide were whether the primary judge correctly interpreted the parenting orders to require compliance with Orders 8 and 9 as a precondition for exercising visitation rights, and whether the summary dismissal of the appeal was appropriate given the evidence provided.

The court found that the primary judge erred in concluding that compliance with Orders 8 and 9 was a precondition for spending time in accordance with Order 29(a) and Order 29(c). The court held that the primary judge intended for the orders to function methodically, with compliance with Orders 8 and 9 being a necessary step before the visitation rights outlined in Orders 29(a) and 29(c) could be exercised. However, the court also determined that the appellant failed to provide prima facie evidence to support his claims, leading to the dismissal of the appeal. The court noted that the summary dismissal was appropriate, as there was no evidence to challenge the orders.

The Federal Circuit and Family Court of Australia amended Order 29(c) to clarify that the visitation rights would only be exercisable upon the father's compliance with Orders 8 and 9. The court dismissed the appeal and affirmed the primary judge's decision. The judgment highlights the importance of clear and methodical interpretation of parenting orders and the necessity for compliance with specified conditions before exercising visitation rights. The court's decision ensures that the intentions of the primary judge are accurately reflected in the orders.

Orders

Orders of the court

NAA 237 of 2024

SYC 6927 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR BARTRAM

Appellant

AND:

MS MARSDEN

Respondent

ORDER MADE BY:

RIETHMULLER, KARI & CHRISTIE JJ

DATE OF ORDER:

16 DECEMBER 2024

THE COURT ORDERS THAT:

1. Order 29(c) of the Orders made 14 August 2023 be amended pursuant to r 10.13(1)(h) of the Federal Circuit and Family Law Court of Australia (Family Law) Rules 2021 (Cth) by varying the words “From 1 January 2024 and thereafter:” to read “From 1 January 2024 and thereafter (provided that the father has complied with Order 8 and Order 9 herein):”

2. Appeal NAA 237 of 2024 be 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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The appellant father appeals against the summary dismissal by the primary judge in August 2024 of five Contravention Applications which alleged 59 contraventions by the respondent mother of various parenting orders made by Curran J in August 2023 (Orders 1 to 24 by consent and Orders 25 to 50 by the Court) (“the parenting orders”). BACKGROUND The various Contravention Applications fell within two categories: the first category (which concerned 57 of the contravention allegations), turned upon the interpretation of the parenting orders that provided the terms upon which the appellant is to spend time with the children; the second category (two of the contravention allegations), concerned the order providing for the children to spend time with the appellant on his birthday. The relevant parts of the parenting orders provided:Courses8. Within 7 days from the date of these Orders, the father shall do all acts and things necessary to enrol into a men’s behavioural change course (such as [B Support Services’] ‘Taking Responsibility - Men’s Behaviour Change Program in NSW’) or [C Support Services’] ‘Men’s Behaviour Change Program’) and thereafter do all acts and things necessary including payment of fees to complete intake assessment and complete the program.9. Upon the father’s completion of the men’s behavioural change course as provided for in Order 8 herein, the father is to, as soon as practicable, provide to the mother a certificate of completion by email.…Spend time orders - during school term29. Subject to compliance with Orders 12 to 14, the children shall spend the following time with the father:(a) From the date of these Orders until the father’s compliance with Orders 8 and 9 herein:(i) Each Wednesday from after school or daycare (or 3pm on a non-school day) to Thursday before school or daycare (or 9am on a non-school day); and(ii) Each Saturday from 9am to 5pm.(b) From the date of compliance with Orders 8 and 9 herein until 31 December 2023:(i) In week 1 each Wednesday from after school or daycare (or 3pm on a non-school day) to Thursday before school or daycare (or 9am on a non-school day).(ii) In week 2 each Friday from after school or daycare (or 3pm on a non-school day) to Sunday at 5pm.(c) From 1 January 2024 and thereafter:(i) In week 1 each Wednesday from after school or daycare (or 3pm on a non-school day) to Thursday before school or daycare (or 9am on a non-school day).(ii) In week 2 each Friday from after school or daycare (or 3pm on a non-school day) to Monday before school or daycare (or 9am on a non-school day).Spend time orders - during school holidays30. The children shall spend time with their parents during term school holidays commencing in 2024, provided the father has complied with Orders 8 and 9 as follows:(a) Following Order 3(c), for one half of the Term 1, 2 and 3 school holiday periods thereafter, the first half with the father and second half with the mother in even numbered years, and first half with the mother and second half with the father in odd numbered years;(b) Following Order 30(a), for one half of the Term 4 Christmas school holiday periods thereafter, with each parent in alternate weeks:(i) In odd numbered years, commencing with the mother in the first week.(ii) In even numbered years, commencing with the father in the first week.Special occasions…32. The children will spend time with the father if not otherwise in the father’s care on the father’s birthday from the conclusion of school or day-care until the commencement of school the following day, or on a non-school day from 3pm until 9am the following day.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 28(3)(e)(i) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) requires appellants to obtain leave to appeal against a “prescribed judgment”. The Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) (“the Regulations”) relevantly provides:4.02Leave to appeal required for some family law and child support proceedings—prescribed judgments(1) For the purposes of paragraphs 28(1)(b) and (3)(e) of the Federal Circuit and Family Court Act, the following judgments are prescribed:(a) an interlocutory decree (other than a decree in relation to a child welfare matter);…(2) For paragraph (1)(a), a child welfare matter is a matter relating to the following:(a) the person or persons with whom a child is to live;(b) the person or persons with whom a child is to spend time or communicate;(c) any other aspect of parental responsibility (within the meaning of Part VII of the Family Law Act) for a child. A summary dismissal order is an interlocutory order: see Re Luck (2003) 203 ALR 1 at [9] as followed in Ebner & Pappas (2014) FLC 93-619 at [32] and Newett & Newett (No 8) (2023) FLC 94-128 at [18]. The issue in this appeal is whether the case falls within the exception in reg 4.02(1)(a) on the basis that it is a “child welfare matter”. The definition of a “child welfare matter” for the purpose of this regulation is that specifically provided for in reg 4.02(2). The definition has been the subject of consideration in Nootkamp & Brulja [2023] FedCFamC1A 90, where Aldridge J found that:12… injunctions [which restrain a person from approaching another, as part of a suite of parenting orders] do not fall within the definition of a child welfare matter and, even on a broad reading of them in the context of the orders as a whole, have insufficient connection with the orders for parental responsibility and with whom the children are to live or spend time, to be characterised as such orders ... The cases dealing with the definition of a “parenting order” in s 64B of the Family Law Act 1975 (Cth) (for example, Trewitt & Brock [2021] FedCFamC1A 9) provide limited assistance in the interpretation of reg 4.02. Section 64B(1)(a) is in relatively narrow terms, referring to orders “dealing with a matter mentioned” in a list of matters defined as “parenting orders”. Regulation 4.02 is in wider terms, referring to an order “in relation to” a “matter relating to”, in this case, “the person or persons with whom a child is to spend time or communicate”. The width of the words in reg 4.02 (as used in its forerunner, reg 15A of the Family Law Regulations 1984 (Cth)) led the Full Court to proceed on the basis that leave was not required to appeal from an interlocutory order with respect to a Contravention Application, although not formally determining the issue (see Markes & Markes (No 2) (2019) 59 Fam LR 558 at [3]; Peake & Cousins [2019] FamCAFC 55 at [18]; Kovacs & Graham [2015] FamCAFC 98 at [26]–[27], and Kettle & Baker [2014] FamCAFC 85 at [3]). Whilst the respondent sought to rely upon the decision in Baynor & Emmitt [2024] FedCFamC1A 164 (at [17]) it was not concerned with summary dismissal of a contravention application and so must be distinguished.

Ratio Decidendi

Legal Principle Established

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