Bartram & Marsden (No 3)

Case [2025] FedCFamC1A 77

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Bartram & Marsden (No 3) [2025] FedCFamC1A 77

Appeal from: Bartram & Marsden (No 3) [2024] FedCFamC1F 825
Appeal number: NAA 359 of 2024
File number: SYC 6927 of 2019
Judgment of: WILLIAMS, SCHONELL, SMITH JJ
Date of judgment: 7 May 2025
Catchwords: FAMILY LAW – APPEAL – Where the appellant appeals orders made in Part VII proceedings – Where the appeal is opposed by the respondent – Where the Independent Children’s Lawyer filed a Submitting Notice and did not seek to be heard – Where the eight grounds as submitted by the appellant are not instantly recognisable as a ground of appeal as opposed to a complaint as to outcome – Where the decision of the primary judge is from an exercise of a wide discretion – Where the appeal is without merit, has been unsuccessful and had no utility – Appeal dismissed – Order for the appellant to pay the respondent’s costs in a fixed sum.
Legislation:

Family Law Act 1975 (Cth) Pt VII, s 65DAAA(3)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.23(2)(a)

Cases cited:

Bartram & Marsden [2023] FedCFamC1F 644

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

Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30

De Winter and De Winter (1979) FLC 90-605

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Graham & Squibb (2019) FLC 93-892; [2019] FamCAFC 33

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84

House v The King (1936) 55 CLR 499; [1936] HCA 40

Nimesh Watapaldeniya v Transport Accident Commission [2022] VSCA 50

Pascoe & Larsen (No 2) [2022] FedCFamC1A 126

Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88

Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54

Warbrick & Warbrick (No. 2) (2021) FLC 94-030; [2021] FamCAFC 101

Number of paragraphs: 42
Date of hearing: 30 April 2025
Place: Sydney
The Appellant: Litigant in person
Counsel for the Respondent: Mr Robertson
Solicitor for the Respondent: Hillcrest Family Lawyers Pty Ltd
The Independent Children's Lawyer: Submitting Notice filed 22 January 2025

ORDERS

NAA 359 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

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

WILLIAMS, SCHONELL & SMITH JJ

DATE OF ORDER:

7 MAY 2025

THE COURT ORDERS THAT:

1.The Notice of Appeal filed 20 December 2024 is dismissed.

2.The appellant pay the respondent’s costs fixed in the sum of $4,538.60 within 42 days.

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…

Continue reading Bartram & Marsden (No 3)

Sign in free to access the full text

Details
AGLC
Bartram & Marsden (No 3) [2025] FedCFamC1A 77
Case
[2025] FedCFamC1A 77
Decision Date

CaseChat Overview and Summary

In the appeal case of Bartram & Marsden (No 3), the appellant contested the final orders made by the Federal Circuit and Family Court of Australia, which were established during a Part VII proceeding. These orders mandated that the parties' two children reside with the respondent and spend agreed-upon time with the appellant, subject to conditions including the appellant's completion of a Men’s Behaviour Change Program. The respondent opposed the appeal, while the Independent Children’s Lawyer did not seek to be heard. The appellant submitted eight grounds for appeal, which were not clearly recognisable as grounds of appeal but rather as complaints about the outcome. The primary judge’s decision, based on a broad discretion, was examined to determine whether the appeal had merit.

The court was tasked with deciding whether the primary judge's decision in Bartram & Marsden (No 3) was correct and whether the appeal grounds were valid. The appellant argued that the primary judge had erred in her assessment of risk and discretion, but the court found that the primary judge had correctly applied the relevant law and made findings based on undisputed facts. The appellant's grounds were not identified as legitimate grounds of appeal but rather as dissatisfaction with the outcome, which did not justify an appeal. The court concluded that the primary judge's cautious approach and detailed risk assessment were appropriate, and the appeal lacked merit.

The appeal was dismissed, and it was determined that the appeal had no utility. The court ordered the appellant to pay the respondent's costs in a fixed sum. This decision underscores the importance of distinguishing between legitimate grounds of appeal and mere dissatisfaction with the outcome. The court found that the primary judge’s approach was justified and that the appeal did not present any valid grounds for reconsideration. Consequently, the orders of the primary judge were upheld, and the appellant was liable for the respondent’s costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For reasons that will become apparent, the appeal will be dismissed.BACKGROUND On 14 August 2023, following a four-day hearing, a judge of Division 1 of the Federal Circuit and Family Court of Australia (“the trial judge”) made final orders pursuant to Part VII of the Act which provided for the parties’ two young children to live with the respondent and spend time with the appellant as agreed and failing agreement during school terms and school holidays. The trial judge recorded these reasons as Bartram & Marsden [2023] FedCFamC1F 644 (“the trial judge’s reasons”). A pre-condition to the orders progressing to overnight weekend and school holiday time was the appellant’s attendance upon a Men’s Behaviour Change Program. Until such time as the appellant completed the program, his time with the children would occur each Wednesday from after school until Thursday before school and each Saturday from 9.00 am to 5.00 pm. The appellant appealed the final orders and on 23 November 2023 his appeal was dismissed. In December 2023, the appellant advised the respondent that he could not complete the Men’s Behaviour Change Program. Thereafter the appellant retained the children on three occasions in January and February 2024. On 14 February 2024, the respondent ceased all time between the children and the appellant. On 8 April 2024, the appellant filed an Initiating Application seeking that the children live with him and that he have sole parental responsibility. On 13 November 2024, the respondent filed a Further Amended Response seeking that the appellant have no time with the children and that she be permitted to relocate to the United Kingdom. On 26 November 2024, a different judge of Division 1 of the Federal Circuit and Family Court of Australia (“the primary judge”) heard the parties’ then competing interlocutory applications. The appellant sought orders for sole parental responsibility, for the children to live with him, and for the mother to be psychiatrically assessed. The respondent for her part sought a discharge of all existing orders and an order for no time between the children and the appellant. The ICL proposed a discharge of the final parenting orders and for the children to spend time with the appellant supervised for at least two hours each alternate week. The primary judge recorded at [11] that the parties had on 5 August 2024 consented pursuant to s 65DAAA(3) of the Act to a reconsideration of the final orders and recorded at [15] that orders for the preparation of a Family Report have already been made. The primary judge in her judgment cited as Bartram & Marsden (No 3) [2024] FedCFamC1F 825 (“the primary judge’s reasons”) recorded the evidence that each party relied upon, correctly observed the relevant law, identified that the evidence revealed that there were significant risks to the children, and noted that she was to adopt a cautious approach to the determination of the competing applications. The primary judge observed that she was able to undertake a risk assessment based on many of the largely undisputed facts and the findings that had been made in the trial judge’s reasons at the final hearing in August 2023 at [33].

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.