Bartram & Marsden (No 2)
[2024] FedCFamC1A 243
•16 December 2024
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 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bartram & Marsden has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER, KARI & CHRISTIE JJ:
INTRODUCTION
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:
Courses
8. 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 term
29. 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 holidays
30. 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.
An analysis of the five Contravention Applications filed by the appellant shows that all of the allegations in the first category are based upon 30 allegations that the respondent breached Order 29(a), and 27 allegations that the respondent breached Order 29(c) over a period from 10 April 2024 to 15 June 2024.
The primary judge found the contraventions alleged by the appellant “relate to time arrangements predicated on the father complying with the requirements of Orders 8 and 9, that he complete a Men’s Behaviour Change Program” (at [19]). Her Honour concluded that the appellant had not completed such a course prior to the time of the alleged contraventions and therefore summarily dismissed these contravention allegations (at [22]).
The two contravention allegations in the second category concerned an alleged failure by the respondent to make the children available for contact on [day] [month] 2024 in accordance with Order 32.
The primary judge sets out that the appellant had alleged that the respondent did not attend a shopping centre he had nominated for the delivery of one of the children to him at 3.00 pm, and that the respondent had collected the other child from school prior to the appellant arriving at the school at 3.25 pm on the same day (at [27]). The appellant’s affidavit filed 18 June 2024 set out that he sent a text message to the respondent advising he had arrived at the time and location for handover (at [28]).
The primary judge summarily dismissed these two contravention allegations, saying:
31The submission made by counsel for the mother is accepted. There is no evidence of the father’s birth date, there is no reference to the date in the Orders, there is no reference in the Contravention Application to that date. There is no evidence that he attended at all, with respect to [the child].
IS LEAVE TO APPEAL REQUIRED?
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.
An application relating to contravention of an order providing for a person to spend time with a child is a “matter” or part of a “matter”. It is necessarily “relating to the person … with whom the child is to spend time” as it is a matter constituted by the application brought by “the person” to enforce the right to “spend time” with the child provided by the parenting orders. The orders made by the primary judge were “in relation to” the “matter” as they dismissed the Contravention Application. As a result, the requirement for leave does not apply as this is not one of the types of judgments prescribed by reg 4.02 of the Regulations, even though the judgment concerns interlocutory orders, as the matter falls within the exception set out in the Regulations.
GROUNDS OF APPEAL
The Amended Notice of Appeal filed 8 November 2024 contains five grounds of appeal. Grounds 3 and 4 concern Contravention Applications brought by the respondent that were not determined but set down for hearing at a later date. No orders are sought with respect to these applications by the appellant. As Grounds 3 and 4 do not relate to appealable orders, they must be dismissed (which the appellant conceded during the hearing of the appeal).
Grounds 1 and 5
Grounds 1 and 5 address the dismissal of the first category of contravention allegations (the 57 allegations). Those grounds allege that the primary judge erred in concluding that compliance with Orders 8 and 9 (the completion of a men’s behavioural change course) were preconditions to the operation of Order 29(a) and Order 29(c).
The appellant argues that the requirements to complete the course, as set out in Orders 8 and 9, were only preconditions for spending time with the children under Order 29(b), whereas Order 29(a) was intended to operate prior to the completion of the courses and Order 29(c) contained no such condition.
Order 29 contains two pre-conditions: first, an overall pre-condition requiring compliance with Orders 12 and 14 (which provided for the appellant to attend upon a psychiatrist). Secondly, Order 29(a) expressly states that it is to operate “until the appellant’s compliance with Orders 8 and 9”. Thus, the primary judge erred in concluding that compliance with Orders 8 and 9 was a pre-condition to the operation of Order 29(a) but was not in error in determining that that order was only intended to operate until the time set out in Order 29(c).
Order 29(c) contains no pre-condition requiring compliance with Orders 8 and 9 (the completion of the course). However, it cannot possibly have been the intention of the parties or the judge who made the orders that, if the appellant did not complete a course of the type required by Orders 8 and 9 within a reasonable time, then it would be in the children’s best interests for the time to nonetheless continue indefinitely, let alone for there to be the increases in time as provided for in Order 29(c). It is apparent from reading the parenting orders made in August 2023 as a whole that Order 29(c) was intended to operate from 1 January 2024, after the increase in time pursuant to Order 29(b) had occurred, which required the appellant’s compliance with Orders 8 and 9 as a pre-condition to any increase in time beyond Order 29(a). This is clearly a drafting slip.
The fact that there is a drafting slip in the orders is also consistent with the reasons given when those orders were made by consent where the trial judge said Bartram & Marsden [2023] FedCFamC1F 644):
200… I find it is in the best interest of the boys to spend time with their father for four nights each fortnight from 2024 (subject to completion of the agreed courses and ongoing psychiatric consultations) and for that time to be in a block each alternate weekend plus every second Wednesday overnight.
…
252… To [the appellant’s] credit he was willing to attend the course as a precondition to the time orders increasing. I find that it is necessary and make the order, noting it is with his consent.
…
271I find that any risk of harm that does arise from the father engaging in behaviour that coerces or controls the mother is ameliorated by the orders made, namely those for sole parental responsibility, for the majority of changeovers to occur at school/daycare (therefore minimising the parties’ contact), for the father to complete a men’s behaviour change course to address his behaviour; and the various restraints including that the children not be used as messengers.
(Emphasis added)
Before us both the appellant and the respondent acknowledged that:
(a)Justice Curran intended that the appellant complete the men’s behavioural change course and that he do so forthwith;
(b)Order 29(a) was only intended to be in place in the short term to enable the appellant’s compliance with the obligations of Orders 8 and 9;
(c)It was not in the contemplation of Curran J that the appellant would not complete the men’s behavioural change course;
(d)Order 29 was intended as a graduated regime – which provided that time occur in a staged fashion such that it was not intended that any two parts of Order 29 would operate simultaneously;
(e)It was not intended that Order 29(c) would operate if Orders 8 and 9 had not been fulfilled.
It is plain from Curran J’s reasons that:
(a)The requirement for the appellant to engage in a men’s behavioural change course was to mitigate risk;
(b)Order 29(a) was intended to operate in the short term until the course could be completed; and
(c)Her Honour contemplated that the appellant would complete the course he had consented to complete and if he so did his time would increase.
The appellant did not complete a men’s behavioural change course as required by Orders 8 and 9.
Expressed more generally, it is clear that Curran J faced the difficult task of balancing the importance of the relationship between the children and the appellant father with the risks that the appellant presented. In striking a balance that was in the children’s best interests, her Honour provided for a short period of limited time whilst the appellant completed a course that would address relevant risks to the children. Whilst those risks may have been tolerable for a limited time whilst a course was undertaken, the considerations would necessarily be different if those risks were to be considered as long-term risks. We also note that the drafting difficulty has only arisen as a result of the unexpected conduct of the appellant in failing to expeditiously complete a course he had agreed to undertake and that but for this conduct the orders were entirely adequate in their terms.
Order 29(a) and Order 29(b) of the parenting orders made in August 2023 provided for a regime which was to be in place between August 2023 and 31 December 2023. The primary judge was correct to dismiss the Contravention Applications to the extent that they alleged contraventions of that order after 31 December 2023.
Order 29(c) of the parenting orders made in August 2023 provided for a regime which would be in place not only after 1 January 2024 but after completion of the first two stages provided for in Orders 29(a) and 29(b). The appellant could not reasonably have expected that his failure to comply with an order that was in place to mitigate risk had no relevance to his progression to the next stage of spending time. The primary judge interpreted the order as it was intended by Curran J, despite the infelicitous wording of the order.
In these circumstances Curran J’s order ought to be corrected under the slip rule (see DJL v Central Authority 201 CLR 226 at [93]). An application to amend the order pursuant to the slip rule ought to have been made by the respondent well before now, however, this Court has power to so amend an order under r 10.13(1)(h) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth): see Daily & Daily (No 2) (2023) FLC 94-151; Jess & Jess (No 5) (2024) FLC 94-190 at [102]; Adler & Parrow [2024] FedCFamC1A 192 at [80].
The appellant’s argument that he was unable to complete a men’s behavioural change course as course providers will not permit him to enrol does alter the terms of the order. The reasons given for refusing his enrolment demonstrate the importance of the order requiring completion of the course, the course provider advising as follows:
[The appellant] has been assessed as ineligible to continue in the Men’s Behaviour Change program at this time. Participation in the program requires men to take accountability for their use of abusive behaviours within intimate partner relationships and be willing to work on themselves to make changes to safe and respectful behaviour. This accountability and willingness have not been evidenced at this stage.
(Appellant’s affidavit filed 25 July 2024, Annexure D)
At the time of the hearing before the primary judge, the appellant had made no application to the Court to vary this substantive part of the orders.
As a result, this ground is not made out.
Ground 2
Ground 2 deals with the two contravention applications concerning the appellant’s contact with the children on his birthday, which were summarily dismissed due to a lack of evidence establishing a prima facie case as to the date of the appellant’s birthday and as to the alleged failure of the respondent to make the child available at the time and place provided for in the orders for changeover.
The appellant’s birthday is set out in the parenting orders of August 2023, which the appellant sought to enforce, and which were annexed to the respondent’s Contravention Application filed in June 2024. The relevant order states:
46. Pursuant to section 68B of the Family Law Act 1975 the father, [Mr Bartram], born [day] [month] 1986, be and hereby is restrained by way of injunction from approaching or coming within 100 metres of the mother’s residence and place of work NOTING this is an Order to which the power of arrest without warrant attaches pursuant to section 68C of the Family Law Act 1975.
(Emphasis added)
The appellant overlooked referring to this order during the hearing, and the respondent incorrectly alleged that there was no evidence as to the appellant’s date of birth (Transcript dated 22 August 2024, p.26 lines 14–15). The primary judge was nonetheless in error in concluding that evidence of the birth date was necessary when the relevant date was contained within the orders.
The primary judge also concluded that there was no evidence before the Court that the appellant had attended to spend time with the child at the place and time provided for in the parenting orders made by Curran J in August 2023. The orders made provision for the time and place for changeover:
6. For the purposes of changeover, the father or his agent is to:
(a) Collect and return the children from their day-care or school on school days.
…
Changeover
35.For the purposes of changeover that do not take place at school, the father or his agent is to collect and return the children from the mother or her agent on non-school days at the entrance of [D Store] at [F Shopping Centre] (in the event that the store is no longer known as “[D Store]”, then at the same historical geographical location of [D Store] at level 3 [F Shopping Centre]).
The evidence shows that the relevant date was a school day for one of the children. Order 35 when read with Order 32 (which provides for changeover for this particular time with the child to take place at “the conclusion of school”) requires changeover to take place at the school.
The appellant made two allegations (as set out in the primary judge’s reasons for judgment delivered August 2024 at [26]–[27]):
(a)“The respondent did not attend [F Shopping Centre] to pass [Y] over to the Father”; and
(b)“The respondent picked up [X] from [FF School], which prevented the father from collecting him at 3:25 pm, to spend the night with him”.
The contravention allegations are not evidence. The appellant’s evidence in support of these allegations was contained in his affidavit filed 18 June 2024 which simply stated that:
16. [Ms Marsden] messaged the Father [in late] May and informed him that she would be complying with the orders. Marked “C” in the tender bundle is this message.
17. I took time out of work and attended [F Shopping Centre] on [the appellant’s birthday] at 3pm to collect [Y]. Marked “D” in the tender bundle is a message to [Ms Marsden] confirming this.
The primary judge recounts that the messages to the respondent were:
29… one [message] in advance of [the appellant’s birthday], [in late] May, indicating that [the appellant] proposed being at [F Shopping Centre] at 3.00 pm the next Tuesday to collect [Y], and then on [the appellant’s birthday], that he had arrived at [F Shopping Centre] and inquiring whether she was attending.
There is no evidence that the respondent agreed to changeover taking place at the shopping centre rather than at the school, as was provided for in the orders. There is no evidence that the child was not available at the school at the time of “the conclusion of school”. The rather technical argument that it was a school day for only one child leads nowhere as the changeover could not be conducted in two different places: the orders must be read as providing for the changeover to occur at the school in this circumstance. Thus, the appellant failed to provide prima facie evidence that the respondent breached the orders.
As a result, this ground must be dismissed.
CONCLUSION
The orders that the appellant sought to enforce were discharged in November 2024 (Bartram & Marsden (No 3) [2024] FedCFamC1F 825) and replaced by interim orders for the appellant to have supervised time with the children. As the allegations concern events that occurred prior to the discharge of the orders, it is appropriate to make the slip rule order to ensure the orders are in proper form should there be any further claims concerning the period of operation of the orders.
As the appellant has not made out a ground of appeal the appeal must be dismissed. Neither party sought a costs order.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Riethmuller, Kari & Christie. Associate:
Dated: 16 December 2024
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