Bartram & Marsden (No 3)
[2024] FedCFamC1F 825
•26 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bartram & Marsden (No 3) [2024] FedCFamC1F 825
File number(s): SYC 6927 of 2019 Judgment of: BEHRENS J Date of judgment: 26 November 2024 Catchwords: FAMILY LAW- INTERIM PROCEEDINGS - PARENTING - EX TEMPORE – Where final parenting orders have previously been made – Where the Father has not complied with the final orders requiring completion of a men’s behaviour change program – Where the children’s time with the Father has not proceeded in accordance with the final orders – Where the Father is self-represented - Where the Father now seeks, amongst other things, sole parental responsibility and that the children live with him and that he consider requests by the Mother to spend time with the children – Where the Father seeks a change to the children’s school and daycare – Where the Mother seeks that the final parenting orders be discharged and that the children to have no time with the Father and that various restraints be made against the Father – Where the Mother sought but did not pursue a harmful proceedings order – Where both parties consented to reconsideration of the final orders pursuant to s 65DAAA of the Family Law Act 1975 (Cth) – Where the Independent Children’s Lawyer sought the discharge of various final orders and restraints against the Father and that he spend professionally supervised time only with the children – Where regard could be had to findings in the previous final judgment by virtue of s 69ZX(3)(b) of the Family Law Act 1975 (Cth) – Where significant risk issues were raised on the evidence – Where findings as to safety made in the previous final hearing adopted – Where orders made discharging certain final orders – Where orders made for the children to spend professionally supervised time with the Father – Where various restraints made against the Father pursuant to s 68B of the Family Law Act 1975 (Cth) – Where orders made by consent restraining both parties from publishing information about these proceedings Legislation: United Nations Convention on the Rights of the Child
Family Law Act 1975 (Cth) ss 60CA, 60CC, 60CG, 65DAAA(3), 68B, 69ZX(3)(b)
Cases cited: Deiter & Deiter [2011] FamCAFC 82
Franklyn & Franklyn [2019] FamCAFC 256
Marvel & Marvel (No 2) (2010) 43 Fam LR 348; [2010] FamCAFC 101
SS & AH [2010] FamCAFC 13
Division: Division 1 First Instance Number of paragraphs: 50 Date of last submission/s: 26 November 2024 Date of hearing: 26 November 2024 Place: Sydney Solicitor for the Applicant: Litigant In Person Solicitor for the Respondent: Hillcrest Family Lawyers 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:
BEHRENS J
DATE OF ORDER:
26 NOVEMBER 2024
THE COURT ORDERS THAT:
1.Orders 3, 4, 6, 15, 28, 29, 30, 31, 32, 34, 35, 38(d) and (e), and 43 of the Orders made 14 August 2023 are discharged.
2.X, born 2017 and Y, born 2019 (together “the children”) will spend time with the Father under the supervision of GG Contact Service or any other contact service as may be agreed to between the parties and to facilitate such time each party must:
(a)Contact GG Contact Service within seven (7) days of the making of these orders to arrange an appointment for assessment for suitability for supervised contact.
(b)Attend the assessment.
(c)Comply with any appointment made by GG Contact Service for supervised contact.
(d)Comply with all reasonable rules of GG Contact Service; and
(e)Comply with all reasonable requests or directions of the staff of GG Contact Service.
3.If the parties are accepted by GG Contact Service following the intake procedure then the Father is to spend time with the children for not less than two (2) hours each fortnight and such time is to be implemented by the Mother delivering the children to GG Contact Service at the start of the Father’s time with the children and collecting the children from the same place at the end of the Father’s time.
4.The Father shall pay any fees nominated by GG Contact Service for the provision of its service.
5.If GG Contact Service, following its intake procedure, and any other contact service as agreed between the parties thereafter is unable or unwilling to provide supervision as set out in these orders, then the Independent Children’s Lawyer shall have liberty to restore the matter to the list on seven (7) days written notice to the parties and to the Court.
6.Pursuant to s 68B of the Family Law Act 1975 (Cth), the Father is restrained from:
(a)Removing the children or either of them from school, pre-school or daycare;
(b)Causing any other person to remove the children or either of them from school, pre-school or daycare;
(c)Attending the children’s daycare centre, pre-school or school or authorising or requesting any other person to do so.
7.Order 6 above is an order for the personal protection of the children and is an order to which the power of arrest applies.
8.By consent, each party is restrained by injunction from publishing any information in relation to these proceedings on any social media platform, to any news agency, to any crowdfunding service or any other network which is publicly circulated.
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
EX TEMPORE
BEHRENS JBACKGROUND
These are short form reasons and deal with the Application in a Proceeding filed by Mr Bartram on 12 November 2024 and the Response to Application in a Proceeding filed by Ms Marsden on 13 November 2024.
These are parenting proceedings and concern X, born 2017 and now aged seven and Y, born 2019 and now aged five (together “the children”). Mr Bartram is the children’s father. Ms Marsden is their mother. X is in Year 1. Y is in pre-school and will start his first year of formal schooling next year. Documents tendered by the Independent Children’s Lawyer (“ICL”) support that Y is a delightful child and doing well at pre-school. Subject to what I say below about X’s experiences of his father attending at his school, X also appears to be doing well and both parents described him to the Court Child Expert as “a delightful and kind child”.
The matter has a long and complex history. The parenting orders currently in place were made by Curran J on 14 August 2023 after a final hearing (“the final parenting orders”). They provide for Ms Marsden to have sole parental responsibility for the children with an obligation to keep Mr Bartram informed, for them to live with her, and for them to spend increasing time with Mr Bartram conditional on his compliance with various requirements, such that ultimately they would be spending time with him four nights a fortnight and half school holidays. Mr Bartram unsuccessfully appealed those orders.
It is common ground that Mr Bartram has not complied with the order made by consent as part of the final parenting orders that he enrol in and complete a men’s behaviour change program and provide evidence of that to Ms Marsden (Orders 8 and 9 of the final parenting orders). Emails tendered in the matter satisfy me that the father has attempted to enrol in such a program but is not eligible. When he completed an intake form on 23 August 2024 he recorded “Hello, I’m a victim of coercive control and I have consented to [sic] men’s behaviour change program. If I complete the course, I will be able to spend more time [incomplete].” The response from the program indicated that “[g]iven your status as a victim and the program’s focus on perpetrators of family violence, this program will not align with your needs.” Further emails refer to the need for participants to have a “sincere commitment to change.”
It is clear from the Reasons for Judgment of Curran J that, along with an order that the father attend six monthly upon his psychiatrist, and provide certain information to the mother, the order for the father to attend a men’s behaviour change program was an important aspect of her Honour finding that the orders her Honour made were in X’s and Y’s best interests and ameliorated various risks (Reasons for Judgment, paragraphs 185 and 200, for example).
Under the final parenting orders, time was to progress to the final stage from January this year, conditional on the father’s compliance with those requirements. In December 2023, the father notified the mother that he was not eligible to attend the men’s behaviour change program and asked her whether she would facilitate school holiday time nonetheless. By January of this year, the father had not yet provided the mother with a letter from his psychiatrist and had not attended a men’s behaviour change program. The mother therefore maintained that the time should remain at the “first stage” in accordance with Order 29(a). This led to the father retaining the children on three occasions. The mother then stopped the children’s time with the father and has not facilitated it since 14 February 2024, although the father has continued to attend X’s school assemblies and other school events, as he was entitled to do pursuant to Order 15 of the final parenting orders.
It is important to note that, in April and October of this year, Mr Bartram did provide letters from his psychiatrist, Dr E. They were received into evidence in these proceedings. They are brief letters and confirm Dr E’s opinion that the father is well, not ill and is on no medication. As the father fairly pointed out, he had no ability to dictate the terms of Dr E’s letters. Nonetheless, the fact that they are so brief and provide no indication of what Dr E knows of the father’s behaviour makes them less reassuring than they might otherwise be. I return to this below.
In the face of the children’s time with him being stopped, on 28 March 2024 Mr Bartram filed a further Initiating Application seeking different parenting orders. He has also filed enforcement and contravention applications, some of which have been dismissed and some of which remain to be determined and some of which have been appealed. He filed an amended Initiating Application on 8 April 2024 (“the amended Initiating Application”).
By the amended Initiating Application, Mr Bartram seeks orders that he have sole parental responsibility for the children and that they live with him.
Ms Marsden filed a Contravention Application on 4 July 2024. On 13 November 2024 she filed a Further Amended Response to Initiating Application (“the further Amended Response”). By the further Amended Response, she seeks that the children have no contact with Mr Bartram and that she be permitted to relocate with the children to the United Kingdom. She also seeks a harmful proceedings order.
On 5 August 2024 both parties consented, pursuant to s 65DAAA(3) of the Family Law Act 1975 (Cth) (“the Act”), to the reconsideration of the final orders.
INTERIM ORDERS SOUGHT
By the Application in a Proceeding Mr Bartram pursues a change of residence on an interim basis, that he have sole parental responsibility for the children, and that “The Father is to consider any request the Mother makes to spend time with the children”. He sought various other orders including that the children be put on the Airport Watchlist and that the mother be psychiatrically assessed. In submissions, he made it clear that he believes it is important to change the children’s school and daycare because those organisations have taken a particular view against him. I deal with that matter further below.
By the Response to Application in a Proceeding, Ms Marsden seeks that all previous parenting orders be discharged, that the children have no contact with Mr Bartram, that there be restraints on Mr Bartram and that a harmful proceedings order be made. The harmful proceedings order was not pursued in circumstances where I had indicated that, even if I had power to make such an order without a final hearing, I was unlikely to be persuaded to make one in circumstances where Ms Marsden herself is seeking that final parenting orders be made by the Court which are fundamentally different from those which were ordered in August 2023.
The ICL filed a Case Outline on 25 November 2024. The ICL sought that various of the final parenting orders be discharged, that various restraints be made and that Y and X spend professionally supervised time with their father for at least two hours each alternate week.
Orders have already been made for the preparation of a Family Report and I was told that the parties have times for appointments with the Court Child Expert.
EVIDENCE AND OTHER MATERIAL
In evidence before me today were the affidavit of Mr Bartram filed 12 November 2024 and the affidavit of Ms Marsden filed 13 November 2024. Given the complexity of the matter, leave was granted for Ms Marsden to rely on her affidavit, notwithstanding it exceeded the 25-page limit. Ms Marsden’s legal representative corrected some aspects of Ms Marsden’s affidavit. I was concerned that the affidavit made no reference to the letters from Dr E and left me with the impression (until I received the ICL’s Case Outline) that the requirement to attend on and provide letters from Dr E had simply not been complied with. That was not the case- although I agree with the mother’s interpretation of the orders that the attendance and confirmation should have occurred first in February of this year.
Those affidavits were received into evidence with their annexures. Mr Bartram also relied on his Notice of Risk which was received into evidence. Also in evidence before me was the Child Impact Report of Ms K dated 16 October 2024. That Report became Exhibit ICL1.
Also in evidence before me were the Reasons for Judgment of Justice Curran. I am able to have regard to the findings in those Reasons for Judgment by reason of the operation of s 69ZX(3)(b) of the Act and I set out below the relevant findings as to risk, which I adopt.
There was also a Tender Bundle on behalf of the ICL and various documents were tendered individually from that Tender Bundle. Mr Bartram also tendered various documents and photographs which I have read, looked at and considered.
A Case Outline was filed on behalf of Ms Marsden on 25 November 2024. At the hearing she was represented by Ms JJ. A Case Outline was filed by Mr Bartram on 25 November 2024. He represented himself at the interim hearing. Y and X’s interests were represented by an experienced ICL, Ms HH. I was told that Ms HH had seen the children on 9 September this year.
When I asked Mr Bartram what he would say his time with the children should be if I ordered they remained living with the mother, he had some difficulty with that proposition. He said first every weekend from after school to at school, then he said he would settle for equal time (50/50) until the final hearing. When I asked him to say anything he wanted to say about supervised time, his only response was that he would be seeking reasons.
RELEVANT LAW (PARENTING ORDERS)
As Mr Bartram pointed out to me, the United Nations Convention on the Rights of the Child (“UNCROC”) is relevant to decision-making about parenting orders- in particular, following the amendment of s 60B of the Act which now provides:
The objects of this Part are:
(a) to ensure that the best interests of children are met, including by ensuring their safety; and
(b) to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
I have considered the particular rights in UNCROC to which Mr Bartram referred me.
In any case, the legislation tells me that when making parenting orders, X’s and Y’s best interests are the paramount consideration (s 60CA).
In working out what is in their best interests, I am required to have regard to the considerations in s 60CC of the Act. As X and Y are not Aboriginal or Torres Strait Islander children, the considerations that apply only to such children are not extracted below.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a) consider the matters set out in subsection (2); and
(b) …
General considerations
(2) For the purposes of paragraph (1)(a), the court must consider the following matters:
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b) any family violence order that applies or has applied to the child or a member of the child’s family.
I am also required to apply s 60CG of the Act which provides:
(1) In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:
(a) is consistent with any family violence order; and
(b) does not expose a person to an unacceptable risk of family violence.
(2) For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
RELEVANT LAW (INJUNCTIONS)
In this matter interim injunctions are sought pursuant to s 68B. An injunction under s 68B is not a parenting order. Such injunction may be made as is “appropriate for the welfare of the child.”
APPROACH TO ISSUES OF RISK AT INTERIM HEARINGS
There are significant risk issues raised on the material in evidence before me. The approach to be taken to contentious issues of risk at interim hearing is effectively summarised in the following extracts from authorities, which make clear that serious allegations cannot be ignored at an interim hearing just because they are contested and untested.
As the Full Court observed in Franklyn & Franklyn [2019] FamCAFC 256 at [73] (citations omitted):
In interlocutory hearings, to the extent it is possible, judges are enjoined to make decisions about interim orders based on agreed facts, less contentious evidence, and inferences which fairly arise, but decisions must still be made despite contentious evidence. Judges are obliged to act on the strength of the evidence presented and, if it is relatively weak, are entitled to treat it so.
Similarly, in SS & AH [2010] FamCAFC 13, at [100]:
… Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
The Full Court followed on in Deiter & Deiter [2011] FamCAFC 82, in particular at [61]:
The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
Further, as explained by the Full Court in Marvel & Marvel (No 2) (2010) 43 Fam LR 348 at [120]:
As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children.
Unusually for risk cases at interim stage, I was able to undertake a risk assessment based on largely undisputed facts as well as the findings that were made by Curran J.
ANALYSIS OF EVIDENCE AND ORDERS TO BE MADE
Both parents raise issues of safety for Y and X in the care of the other.
Mr Bartram raises concerns about psychological harm caused to the children from being deprived of time with their father- which he describes as psychological abuse. He also made clear during the interim hearing that he maintains the risks outlined in his Notice of Risk, including that the mother may murder the children. He thus makes the most serious possible allegations against Ms Marsden without any basis whatsoever, other than by saying that he does not know what lengths the mother will go to. Various authorities have been involved with this family, including police and the Department of Communities and Justice. They have raised no concerns about the care of the children provided by the mother. The evidence is that X and Y are doing very well in the circumstances. I do not have any concerns about the safety of the children in the care of Ms Marsden. In circumstances where I find Ms Marsden has legitimate concerns about the children’s safety in the care of Mr Bartram, her withholding them does not constitute psychological abuse.
Ms Marsden raises concerns about risks to the children based on a number of matters including: that Mr Bartram was historically diagnosed with symptoms of mental illness, where Mr Bartram has behaved erratically since January of this year, including by withholding the children, and where Mr Bartram admits that he wants to speak with the children so that, effectively, they can understand his position. She also says that she is frightened of Mr Bartram and that any resumption of time (even if professionally supervised) will cause her anxiety and fear and undermine her parenting. She says that these (and other) proceedings brought by Mr Bartram are “systems abuse” and constitute family violence. To be clear, I am not in a position to make such a finding at this stage- as the Court Child Expert opined, the final parenting orders did not work for the parties in circumstances where Mr Bartram was not eligible for the men’s behaviour change program. It was not necessarily unreasonable for him to commence proceedings in those circumstances. As I set out below, various aspects of his behaviour since he has done so has damaged the case he might otherwise have had to progress time.
Mr Bartram says that, faced with Ms Marsden refusing to negotiate a progression in care arrangements in circumstances where he could not complete the men’s behaviour change program, and Ms Marsden then denying him any time at all, he had no choice but to commence these proceedings. He says he has not used family violence against the mother, and points out that he has not spoken to her more than about three words for the last five years. He says that he is not a risk to the children, the mother is, and that the children are missing out on opportunities for spending special occasion time with him and his family, as well as ordinary family and parenting activities like reading bedtime stories and playing games.
In relation to safety, Curran J made the following findings, which I adopt:
(1)Her Honour accepted the evidence of Dr E that the father was not at that time suffering from any current psychiatric condition and that the father was “in good mental health” (Reasons, paragraph 18);
(2)“…[t]he father’s mental health history presents a low but relevant unacceptable risk of harm to the children” (Reasons, paragraph 19);
(3)The father “…remains in a good mental state in the opinion of his treating psychiatrist and the single expert” (Reasons, paragraph 19);
(4)There was no evidence to support that the father may have an undiagnosed personality disorder or mental health issue (Reasons, paragraph 20);
“… [t]he low, but relevant risk, can be ameliorated by the regular attendance by the father upon his treating psychiatrist with the mother being advised of any symptoms of relapse and if the father fails to attend upon any scheduled appointments” (Reasons, paragraph 21);
(5)The father displayed acute symptoms of a mental illness in late 2012 to mid-2013 and his family accepted him to be mentally ill (Reasons, paragraph 30);
“I am satisfied on the balance of probabilities that the mother was concerned and frightened by the father’s behaviour” (Reasons, paragraph 103);
That in relation to equal shared parental responsibility (Reasons, paragraph 137):
I find that the father was at times aggressive in his dealings not only with the mother but with other agencies…I find that he does not see his responses as aggressive and this lack of insight into how he is perceived also supports a finding that it would not be in the children’s best interests for the parents to have equal shared parental responsibility.
That in relation to the father’s behaviour (Reasons, paragraph 183):
I find that the father’s behaviour was at times coercive or controlling and caused the mother fear and that cumulatively his conduct and the context in which it occurred supports a finding that he has perpetrated family violence as defined.
It is not disputed and I find that, since the making of the final parenting orders:
(1)Mr Bartram unilaterally withheld the children on three occasions in January and February of this year, and police were contacted. In February, Ms Marsden dropped the children to Mr Bartram on Saturday morning and on the basis that they would be returned at 5.00 pm. He retained them until Monday morning and returned them to school without their school uniforms or bags. It is clear from the Child Impact Report that X found this distressing. Ms Marsden also withheld the children in January prior to an international trip and she says that she did that because she was concerned that Mr Bartram would withhold the children, stymying their travel plans. Mr Bartram says that he interpreted the orders in a way which meant he was entitled to do what he did. Even if that was his subjective interpretation, I find that it was not a reasonable one, and his conduct in retaining the children in the absence of agreement was not in the children’s best interests.
(2)Mr Bartram alleges there is a risk that Ms Marsden will murder the children (including by stabbing or drowning them) and also alleges that it may be the case that she would not want to spend time with them.
(3)Mr Bartram will talk with the children about what has occurred and believes it is important that they know about the circumstances of the dispute.
(4)Mr Bartram has had significant disputes with both Y’s pre-school and X’s school.
(5)X’s school has now written to Mr Bartram in mid-2024 (Exhibit ICL5) noting that: “departmental staff are entitled to be treated with dignity and respect when concerns are raised by parents. This includes parents behaving in a reasonable manner towards our staff” and “your current behaviour through emails is negatively impacting on staff wellbeing and is unacceptable.” The school has put in place a communication protocol limiting Mr Bartram’s communication with the school.
(6)Y’s pre-school wrote to Mr Bartram in early 2024 advising him to “cease and desist” from communicating with them and telling him that they would call police if he attended the grounds.
(7)Four teachers at X’s school were left in tears and had to go home on one occasion of Mr Bartram’s attendance there.
In relation to the children’s schools, I accept that the organisation “[KK Childcare Centre]” took a different approach to Mr Bartram than have LL School or X’s school and have apologised to him for not allowing him to collect Y on Wednesdays. A photograph tendered by the father shows a beaming X clearly delighted to have his father and grandmother present at Grandparents’ Day. Nonetheless, I find that Mr Bartram has behaved inappropriately at the children’s school and pre-school and that has had a negative impact on at least X.
Even talking with the Court Child Expert in the feedback session, Mr Bartram became “highly agitated” and “reported that he would file a complaint” such that the Court Child Expert ended the call (paragraph 42). He gave evidence about that as follows (paragraph 83 of the father’s affidavit):
I suggested to the child expert that there was a lack of interlect [sic] utilised based on the questions I was being asked by her in the phone call I took after she met with the children. The child expert reported to me that [X] had said that he didn’t want me at his school and when I asked the child expert if she asked [X] why, she said that she did not ask that. It was not my intention to suggest that the child expert lacked interlect [sic] but to enquire as to the reason why her interlect [sic] was being underutilised.
This evidence, in particular, causes me to think that the father is incapable of reflecting upon his own behaviour and seeing it from the point of view of others. As the Court Child Expert opined “…there appears to be an ongoing pattern of behaviour perpetrated by [Mr Bartram] where he intimidates professionals in the children’s lives” (paragraph 45). This inevitably compromises his parenting capacity.
The Court Child Expert opines that “[t]here is concern that his distress may lead him to behave in a way that may be harmful to the children and [Ms Marsden]” (paragraph 51).
I find that there is a conglomeration of risk factors which would make unsupervised time for the children with Mr Bartram unsafe. If I am required to do so, I find that unsupervised time with Mr Bartram would involve an unacceptable risk of harm to the children because:
(1)Notwithstanding the letters from his psychiatrist, I am concerned about the extreme positions he has taken in relation to the mother- including that he does not know if she would want to spend time with the children if they lived with him, that she may murder the children (including by stabbing or drowning them), and that she should be imprisoned for breaches of the final parenting orders. I cannot be reassured that Dr E is aware of the behaviour of Mr Bartram over the course of this year. It is important that an expert who is aware of what has occurred assess the extent and nature of the risks. I adopt a cautious approach.
(2)As the Court Child Expert opined “[Mr Bartram’s] comment that he does not believe [Ms Marsden] would want to spend time with the children is alarming. His comment suggests that he holds a poor and dismissive attitude about [Ms Marsden’s] role as the children’s parent and their primary carer” (paragraph 40). I am also concerned that Mr Bartram will pass on his views to the children.
(3)If I thought that Mr Bartram would comply with orders, that the children would be reassured that he would comply with orders, and that he would not share his views about the dispute with the children I may have been prepared to order at least daytime only unsupervised time, but he told me plainly that he wanted to be able to explain to them the circumstances. I also cannot be satisfied as to his compliance with orders. Talking to the children in the way that I expect he would is likely to cause Y and X emotional and/or psychological harm, in part because it will cause them to feel conflicted loyalties. I also accept that, given the previous experiences with the father withholding the children, they are likely to be anxious about whether he will return them at the end of the time. As the Court Child Expert opined (paragraph 48):
[Mr Bartram’s] decision to keep the children overnight without consulting [Ms Marsden] and without preparing the children was not child focussed. [X’s] anger about his father’s decision to do so and not follow the rules is developmentally age appropriate and suggests that he was emotionally unprepared for overnight time. The impact of such on the children is that the children may not trust either of their parents when it comes to explaining arrangements of times. It is also possible that the children begin to feel uneasy or emotionally unsafe when spending time with their father if they do not trust in his capacity to return them to [Ms Marsden].
In all of the circumstances, I am satisfied that the only arrangement which will be safe for Y or X is for their time with Mr Bartram to be professionally supervised.
I do not accept the submission on behalf of the mother that the risk or the mother’s likely anxiety is such that an order for no time should be made. The mother should be assured that the children will be properly protected at a professional supervision centre and that the staff there will intervene or stop time if the father acts inappropriately. In circumstances where she is pursuing different final orders from those made by Curran J, including for an international relocation, I reject the submission that an order for supervised time would be what would cause her to be concerned about the continuation of proceedings. On her application, they will continue anyway. Supervision reports or notes from the contact service will provide further evidence for the Court and will be able to be taken into account by the Court Child Expert in assessing risk as part of the Family Report process. The Court Child Expert opined that “[t]he children would benefit from having orders made and implemented that provide a consistent and predictable pattern of time with their father, if the court considers it safe for the children to recommence time in the interim” (paragraph 49). I find that professionally supervised time will be safe or will be immediately stopped if it is not.
Further, the Child Impact Report makes clear that the children are pining for their father and want to spend time with him, albeit with strict ground rules which are complied with. They have a right to benefit from such relationship as they can safely have with the father. I have considered the fact that the father has a loving extended family and that the children also have a right to have a relationship with them. That will not be able to occur under circumstances of supervision. Nonetheless, I am satisfied that professional supervision is in the children’s best interests, and I make the order for supervised time as sought by the ICL.
I satisfied that there is no risk that Ms Marsden will abscond with the children. Orders were made allowing her to travel internationally in August 2023, and she has complied with those. She was born in the United Kingdom and has family there, and it is appropriate that she continue to be able to travel there in accordance with the final parenting orders. I have discharged the orders which require that the father be given “make up” time in respect of the mother’s international travel because they are potentially inconsistent with the supervised time orders, although I would expect that, if the mother travels overseas while these interim orders remain in force, and if the children therefore miss a supervised visit with their father, an additional supervised visit would be scheduled.
In relation to the injunctive orders sought by the ICL, I am satisfied that they are appropriate for the welfare of the children. Children need their schools, pre-schools and daycare facilities to be “safe spaces”. They need to feel like accepted members of the school community. They need their teachers and caregivers to feel safe and comfortable. I am satisfied on the evidence before me that these things have been jeopardised by Mr Bartram’s conduct, and will continue to be jeopardised unless he is restrained. X told the Court Child Expert that he “adores his teacher” and “has a keen interest in science” (paragraph 16). He described his worry about his father and paternal grandmother coming to his class and said that “… he does not want his paternal grandmother nor his father to continue coming to his school” (paragraph 19). He is young, and his views have to be seen in that context, but the Court Child Expert accepted that they reflect his reality. The Court Child Expert opined (at paragraph 45) that:
This author holds concerns about the impact of [Mr Bartram’s] and his paternal family members’ presence at [X’s] school on [X] and [Ms Marsden]. It is likely that [X] may become aware of the impact of his father’s presence which is likely to have a further negative impact on his friendships with his peers and how he and his family are perceived by the school community. This author is of the view that [Mr Bartram] is causing harm to [X] by attending the school given the current dispute between the parents and the Court may wish to consider restraints to prevent this from continuing.
Given that the schools have experienced significant difficulties in relation to Mr Bartram’s communication with them, I have, even though it was not sought by the ICL, discharged Order 28 of the final parenting orders. I did not raise with the parties, so have not made an order that the mother is to provide copies of school reports and school photographs to the father, but I would hope that she would do so in circumstances where I am restraining him from contacting the school to obtain those documents directly.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of the Honourable Justice Behrens.
Associate:
Dated: 26 November 2024
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