Bartram & Marsden (No 3)

Case [2024] FedCFamC1F 825

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…

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AGLC
Bartram & Marsden (No 3) [2024] FedCFamC1F 825
Case
[2024] FedCFamC1F 825
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the court heard an application for interim parenting orders between Mr Bartram and Ms Marsden. The application concerned the children X and Y, born in 2017 and 2019 respectively. The matter was brought before the court due to the Father's non-compliance with previous final parenting orders, specifically his failure to complete a men’s behaviour change program and the improper execution of the children's visitation schedule. The Father, who was self-represented, sought sole parental responsibility and modifications to the children's schooling and daycare arrangements. Conversely, the Mother sought the discharge of existing parenting orders, the prohibition of any visitation by the Father, and the imposition of various restraints against him. The Independent Children’s Lawyer advocated for the discharge of certain final orders, supervised contact only, and restraints against the Father.

The primary legal issues before the court were the reconsideration of existing parenting orders due to non-compliance and the assessment of risk to the children's safety and well-being. The court had to determine whether to discharge the existing orders, impose new supervised contact conditions, and establish restraints to protect the children. The United Nations Convention on the Rights of the Child (UNCROC) was also relevant, particularly in ensuring the children's safety and best interests. The court had to weigh the safety concerns raised by the Mother against the Father's rights and the children's need for a relationship with both parents.

The court, Behrens J, decided to discharge certain final parenting orders and impose new conditions to safeguard the children. The court found that the Father's non-compliance with previous orders and the safety concerns raised warranted these changes. The children were to spend supervised time with the Father, with GG Contact Service or an alternative agreed upon by the parties facilitating this contact. The Father was restrained from removing the children from their school or daycare, attending their educational facilities, or requesting others to do so. The court also granted an order for personal protection of the children and imposed restraints against publishing information about these proceedings on social media or other public platforms. The court's decision was based on the previous findings of risk and safety, which it adopted, and the necessity to protect the children's well-being.

The final orders included the discharge of several previous orders, the implementation of supervised contact conditions for the Father, and restraints against him to protect the children. The children were to spend at least two hours every fortnight with the Father under supervision, with the Mother facilitating the contact. The Father was also restrained from certain actions regarding the children's schooling and daycare. The court further restrained both parties from publishing information about these proceedings on any public platform.

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

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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