Bartram & Marsden (No 2) - [2024] FedCFamC1F 574

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bartram & Marsden (No 2) [2024] FedCFamC1F 574

File number(s): SYC 6927 of 2019

Judgment of: BOYLE J

Date of judgment: 22 August 2024

Catchwords: FAMILY LAW – CONTRAVENTION – Where Final Orders were made on 14 August 2023 – Where the father alleges the mother has contravened the Final Orders - Where the mother seeks summary dismissal of the father’s Contravention Applications pursuant to s 102QAB of the Family Law Act 1975 (Cth).

Legislation: Family Law Act 1975 (Cth) ss 68B, 102QAB

Cases cited:
Bigg & Suzi (1998) 22 Fam LR 700

Lindon v Commonwealth of Australia(No 2) (1996) 136 ALR 251

Stativa & Stativa [2015] FamCAFC 170

Division: Division 1 First Instance

Number of paragraphs: 34

Date of hearing: 22 August 2024

Place: Sydney

Counsel for the Applicant: Litigant in person

Counsel for the Respondent: Mr Katsinis

Solicitor for the Respondent: Hillcrest Family Lawyers Pty Ltd
ORDERS

SYC 6927 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR BARTRAM

Applicant

AND:
MS MARSDEN

Respondent

ORDER MADE BY:

BOYLE J

DATE OF ORDER:

22 AUGUST 2024

THE COURT ORDERS THAT:
1.The matter is adjourned to 14 October 2024 at 10am for hearing in relation to the Contravention Application filed by the mother on 4 July 2024.
2.It is requested that the Independent Children’s Lawyer attend the hearing on 14 October 2024.
3.The Contravention Application filed by the father on 12 April 2024 is summarily dismissed.
4.The Contravention Application filed by the father on 14 May 2024 is summarily dismissed.
5.The Contravention Application filed by the father on 7 June 2024 is summarily dismissed.
6.The Contravention Application filed by the father on 18 June 2024 is summarily dismissed.
7.The Contravention Application filed by the father on 4 July 2024 is summarily dismissed.

THE COURT NOTES THAT:
A.The father has made an application pursuant to s 102NA of the Family Law Act 1975 (Cth) for legal representation in these proceedings and that is the basis on which the matter has been adjourned.

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).
EX TEMPORE REASONS FOR JUDGMENT
BOYLE J:

The father has filed various Contravention Applications…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bartram & Marsden (No 2)

Details

AGLC: Bartram & Marsden (No 2) [2024] FedCFamC1F 574
Case: [2024] FedCFamC1F 574
Decision Date: 22 August 2024

CaseChat Overview and Summary

In Bartram & Marsden (No 2), the matter before Boyle J in the Federal Circuit and Family Court of Australia involved a dispute between the father, Mr Bartram, and the mother, Ms Marsden, regarding parenting arrangements for their two children, X and Y. The case centred on the father's Contravention Applications alleging that Ms Marsden had breached Final Orders made on 14 August 2023. Ms Marsden sought a summary dismissal of these applications under section 102QAB of the Family Law Act 1975 (Cth), asserting that the father had failed to meet the preconditions for time orders outlined in Orders 8 and 9.

The primary legal issue before the court was whether the father's Contravention Applications should be summarily dismissed because he did not comply with the preconditions specified in Orders 8 and 9. These orders required the father to enrol and complete a men’s behavioural change course and subsequently provide a certificate of completion to the mother. The court examined whether the failure to meet these preconditions rendered 57 out of 59 of the contraventions asserted by the father invalid. The court also had to consider the implications of the Full Court's decision dated 23 November 2023, which dismissed the father's appeal against the Orders.

Boyle J found that the father had not met the preconditions set out in Orders 8 and 9, and therefore, 57 of the 59 contraventions in his applications must fail. The court held that the father's failure to complete the required behavioural change course and provide the certificate of completion to the mother meant that he did not comply with the preconditions necessary for the Contravention Applications to proceed. Consequently, the court granted Ms Marsden's application for a summary dismissal of the father's applications. The court also noted that the father had applied for legal representation under section 102NA of the Family Law Act 1975 (Cth), which was the basis for the adjournment of the matter.

The final orders of the court were that the matter was adjourned to 14 October 2024 for a hearing in relation to the mother's Contravention Application filed on 4 July 2024. Additionally, the court requested that the Independent Children’s Lawyer attend the hearing on that date. The court summarily dismissed the father's Contravention Applications filed on 12 April 2024, 14 May 2024, 7 June 2024, 18 June 2024, and 4 July 2024. The court also noted the father's application for legal representation, which was the basis for the adjournment of the matter.

Orders

Orders of the court

SYC 6927 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR BARTRAM

Applicant

AND:

MS MARSDEN

Respondent

ORDER MADE BY:

BOYLE J

DATE OF ORDER:

22 AUGUST 2024

THE COURT ORDERS THAT:

1. The matter is adjourned to 14 October 2024 at 10am for hearing in relation to the Contravention Application filed by the mother on 4 July 2024.

2. It is requested that the Independent Children’s Lawyer attend the hearing on 14 October 2024.

3. The Contravention Application filed by the father on 12 April 2024 is summarily dismissed.

4. The Contravention Application filed by the father on 14 May 2024 is summarily dismissed.

5. The Contravention Application filed by the father on 7 June 2024 is summarily dismissed.

6. The Contravention Application filed by the father on 18 June 2024 is summarily dismissed.

7. The Contravention Application filed by the father on 4 July 2024 is summarily dismissed.

THE COURT NOTES THAT:

A. The father has made an application pursuant to s 102NA of the Family Law Act 1975 (Cth) for legal representation in these proceedings and that is the basis on which the matter has been adjourned.

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 mother's application is that the Contravention Applications filed by the father should be summarily dismissed. The essence of her application is that there were preconditions to orders for time, which the father has not met, pursuant to Orders 8 and 9.[1] As I will detail shortly, because of his failure to meet those requirements, 57 out of 59 of the contraventions asserted in the applications must fail. [1] Orders of 14 August 2023.BACKGROUND This matter arises from a parenting dispute between the parties with respect to their two children, X who is aged six and Y who is aged five. There have been lengthy proceedings between the parties. I understand from the background, which is common to both, that the parties separated when Y was a baby. The Orders of Curran J, which concluded those proceedings, came after some Consent Orders were made. The matters remaining in dispute were resolved by Orders made by the court on 14 August 2023. The orders that were made by consent include Orders 8 and 9 of the Orders which are the subject of contention today. Following the making of those Orders there was then an appeal filed by the father, and an Amended Notice of Appeal was filed on 25 October 2023. There was a judgment of the Full Court of the Federal Circuit and Family Court of Australia, which is before me, dated 23 November 2023. Part of the appeal before the Full Court was with respect to Orders 8 and 9.[2] Those Orders read: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]’s [men’s behavioural change course]) or [C Support Services]’s ‘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.[2] Orders of 14 August 2023. McClelland DCJ authored the judgment in the appeal. At paragraph 17 of that decision, he referred to the father wanting Orders 8 and 9 to be removed. It is clear when one reads that decision, that the appeal was dismissed and the father was not successful. It would, therefore, have been clear to the father that Orders 8 and 9 remained in full effect following the Full Court decision, if it was not clear already from the Orders and decision of Curran J. THE LAW These proceedings are with respect to Contravention Applications which the wife seeks be dismissed. Part XIB is part of the new amendments to the Family Law Act 1975 (Cth) (“the Act”), and some time was taken up this morning with directing the parties to the correct legislation, rather than the old section 45A. Section 102QAB of the Act is the section that the mother moves on:(1)The court may make a decree for one party (the first party) against another in relation to the whole or any part of proceedings if:(a) the first party is prosecuting the proceedings or that part of the proceedings; and(b) the court is satisfied that the other party has no reasonable prospect of successfully defending the proceedings or that part of the proceedings.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	SYC 6927 of 2019
Judgment of:	BOYLE J
Date of judgment:	22 August 2024
Catchwords:	FAMILY LAW – CONTRAVENTION – Where Final Orders were made on 14 August 2023 – Where the father alleges the mother has contravened the Final Orders - Where the mother seeks summary dismissal of the father’s Contravention Applications pursuant to s 102QAB of the Family Law Act 1975 (Cth).
Legislation:	Family Law Act 1975 (Cth) ss 68B, 102QAB
Cases cited:	Bigg & Suzi (1998) 22 Fam LR 700 Lindon v Commonwealth of Australia(No 2) (1996) 136 ALR 251 Stativa & Stativa [2015] FamCAFC 170
Division:	Division 1 First Instance
Number of paragraphs:	34
Date of hearing:	22 August 2024
Place:	Sydney
Counsel for the Applicant:	Litigant in person
Counsel for the Respondent:	Mr Katsinis
Solicitor for the Respondent:	Hillcrest Family Lawyers Pty Ltd

SYC 6927 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR BARTRAM Applicant
AND:	MS MARSDEN Respondent

ORDER MADE BY:	BOYLE J
DATE OF ORDER:	22 AUGUST 2024