Bartram & Marsden (No 4)
[2025] FedCFamC1F 74
•10 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bartram & Marsden (No 4) [2025] FedCFamC1F 74
File number(s): SYC 6927 of 2019 Judgment of: BEHRENS J Date of judgment: 10 February 2025 Catchwords: FAMILY LAW – INTERIM HEARING – Disqualification application – Where the Applicant makes allegations of actual bias and apprehended bias – Where the Applicant was self-represented and directed to the respective tests for actual bias and apprehended bias – Where the Applicant’s perception of bias is not sufficient to establish actual bias or apprehended bias – Where the Applicant’s dissatisfaction with the outcome is not sufficient to establish actual bias or apprehended bias – Application dismissed Cases cited: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Newett & Newett (No 2) (2021) FLC 94-051; [2021] FedCFamC1A 11
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16
Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71
Division: Division 1 First Instance Number of paragraphs: 20 Date of last submission/s: 10 February 2025 Date of hearing: 10 February 2025 Place: Sydney Solicitor for the Applicant: Litigant in Person Solicitor for the Respondent: Hillcrest Family Law Pty Ltd 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:
10 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 13 December 2024 is 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
BEHRENS J
These proceedings concern X, aged seven, and Y, aged five. X and Y's parents are Mr Bartram and Ms Marsden. X's and Y's interests in these proceedings are represented by an Independent Children's Lawyer (“ICL”), Ms Foini.
By way of interim orders made on 26 November 2024, I discharged certain of the final parenting orders made by Curran J on 14 August 2023, and provided for X and Y to spend professionally supervised time with Mr Bartram. By a Notice of Appeal filed 20 December 2024, Mr Bartram has appealed those interim orders. The Notice of Appeal is listed for directions on 19 February 2025.
Before me today was Mr Bartram's application that I disqualify myself from any further involvement in these proceedings. That application was made by an Application in a Proceeding filed 13 December 2024 (“the disqualification application”), which was supported by an affidavit of Mr Bartram also filed on 13 December 2024 (“the affidavit”). I received that affidavit into evidence. I also received my Reasons for Judgment into evidence. Mr Bartram did not have a transcript of the hearing, and neither did the ICL nor Ms Marsden's solicitor.
Mr Bartram was self-represented at the hearing of the disqualification application.
The ICL filed a Case Outline late on 9 February 2025, in which she sought the dismissal of the disqualification application. Ms Marsden filed a Response to an Application in a Proceeding on 9 February 2025, in which she sought that the disqualification application be dismissed. Ms Marsden also filed an affidavit, but - appropriately given its late filing - it was not relied upon.
At the commencement of the hearing, Mr Bartram confirmed that he had had the opportunity to read and consider the ICL's Case Outline. I provided him with a copy of the decision of the Full Court in Newett & Newett (No 2) (2021) FLC 94-051 (“Newett”), and drew his attention to the principles extracted there, particularly at paragraphs [57]-[59] (as to actual bias) and [73] and [78] (as to apprehended bias).
Mr Bartram confirmed that his application was based on the ground that I am actually biased against him, and also on the basis of apprehended bias.
In his submissions, Mr Bartram identified what he said were errors in my Reasons for Judgment. He made the submission that a fair-minded lay person would not have made the orders that I made. I drew his attention to the fact that any errors I may have made were a matter for his appeal, rather than for the disqualification application, and directed him to the relevant tests.
In his affidavit, Mr Bartram identified what he said were errors in my decision, and also made the following points (spelling errors in the original corrected):
(1)“At the directions hearing on the 10th of December, Justice Behrens made light of the fact that the contravention application I have filed may not be heard” (paragraph 4).
(2)“At the hearing on the 26th of November Justice Behrens engaged in behaviour that was intended to victimise me and bully me. She made the statement ‘he will appeal no matter what orders I make’” (paragraph 5).
(3)“Justice Behrens conducted a hearing that took approximately one and a half hours and allowed no opportunity for any one to be cross examined” (paragraph 6).
(4)In relation to my discharging of every spend time order and the impact of this decision upon him:
The meaningful moments have been replaced with meaningless court hearings that are now intended to drive me to suicide using bullying tactics and violent unreasonable behaviour by some of the most powerful people in this Country. In this case; Justice Behrens (paragraph 8).
(5)“The statements and decisions made by Justice Behrens are intended to make me feel powerless and invoke a suicidal state of mind in me” (paragraph 12).
(6)In relation to the proposed timing of the final hearing:
At the directions hearing on the 10th of December, Justice Behrens stated that she intended to list another trial hearing for the middle of next year due to the amount of proceedings that have taken place. This is despite the argument that was presented at the interim hearing on the 26th of November where both parties agree that the only way to invoke a child’s human right to have a relationship with a parent in Australia is to file court proceedings. It would appear that Justice Behrens is of the opinion that a child’s human right is not an issue in any of the court rooms she presides over. (paragraph 15).
In oral submissions, Mr Bartram added that my use of the term “extreme position” to describe his views that the children are at risk of being murdered by Ms Marsden, including by stabbing or drowning, had revealed that I am biased against him because of his gender. Mr Bartram contended that I was adopting the continuing rhetoric about men, and the policy about protecting women and children, while ignoring a trend for women to murder their children. As part of this submission, he pointed out that, during the previous proceedings, Ms Marsden had raised issues of risk to the children while in his care, and he submitted that my different approach to his allegations of risk was gendered.
Mr Bartram also reiterated that my decision had deliberately “put his life at risk”, although he disavowed that he was suicidal.
In Newett, the Full Court at [57]-[58] summarised the law relating to actual bias as follows:
57.The test for actual bias requires the appellant to establish that the judge’s mind was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented” (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72] and [176]).
58.The relevant principles were helpfully summarised in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68]–[70]:
68.A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 (Sun v Minister) at 127 per Burchett J. Authority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97] and the authorities there cited.
…
70.As Gleeson CJ and Gummow J observed in that case at [71]:
“The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion.”
In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] and [8], Gleeson CJ, McHugh, Gummow and Hayne JJ described the inquiry as to existence of an apprehension of bias as follows (footnotes omitted):
Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.
Nothing which occurred at the hearing on 26 November 2024 or at the Directions Hearing on 10 December 2024 establishes that I am biased against Mr Bartram. I was and am open to the evidence and to arguments. I accept that the orders I made were very distressing for Mr Bartram and that he believes I have made the wrong decision. I accept he believes that I have made findings and orders on the basis that he is a man, and I accept that he believes I am adopting what might be described as a "gendered narrative" in relation to risk. The fact that Mr Bartram perceives me to be biased is not sufficient to establish actual bias. The risks which Mr Bartram identified in his Notice of Child Abuse, Family Violence or Risk do represent him as taking an "extreme position", because they refer to a risk of Ms Marsden murdering X and Y, including by stabbing or drowning them. There is not a scintilla of evidence at this stage in the proceedings which would support that there is such a risk. The orders I made were based on my conclusion that they were in Y's and X's best interests, having taken a cautious approach to risk at this interim stage.
The fact that Mr Bartram perceives me to be biased is also not sufficient to establish an apprehension of bias. That must be judged from the point of view of a fair-minded lay observer and the question is whether such a person “might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge must decide.”
Relevant context about which the fair-minded lay observer would be informed includes:
(1)At the beginning of the interim hearing, I was critical of Ms Marsden's material, including her failure to tell the Court that Mr Bartram had provided a letter from his psychiatrist. I directed Ms Marsden's lawyer to indicate any other places where the affidavit relied on was not accurate, and she proceeded to do so.
(2)I raised with the ICL (who was seeking orders for supervised time) the possibility of making interim orders for unsupervised daytime.
(3)I listened carefully to what Mr Bartram had to say in submissions, and ensured he had sufficient time to say what he wanted to say. I gave him a right of reply.
(4)I explained Court processes to Mr Bartram, including his ability to object to material tendered, and to tender material himself.
(5)I was critical of some of the submissions made on behalf of Ms Marsden, and did not make the orders sought by her.
(6)I identified in my Reasons for Judgment that X and Y are pining for their father.
My comment in relation to the probability that Mr Bartram would appeal whatever order I make was not made to him, but in response to a submission on behalf of Ms Marsden, about which I was critical. The submission was to the effect that I should make orders for no time, because if I made orders for supervised time, that would increase Ms Marsden's anxiety – firstly because it would put the family back where they were before the 2023 final orders were made, and secondly because Mr Bartram would appeal the orders. My comment was dismissive of that submission (describing it as unhelpful) and, having been made in that context, was not directed towards Mr Bartram, and was not bullying. I remarked, in that context, upon the likelihood that Mr Bartram would appeal any decision (meaning a decision for no time or a decision for supervised time). That remark was made on the bases that he has previously appealed decisions he did not believe were in the best interests of the children and that he had indicated at the interim hearing that he would ask for reasons if I ordered supervised time. The fact that I made that remark does not mean that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the question of what orders are in X's and Y's best interests. That is particularly so given the matters identified in paragraph 16.
At the Directions Hearing on 10 December 2024, I indicated my concern that, if I heard the Contravention Application filed by Mr Bartram, I might then have to disqualify myself from the final hearing. In so doing, I did not “make light of the fact” that the Contravention Application might not be heard. To the contrary, I sent the Contravention Application to the Case Management Judge for allocation to another judge.
During the Directions Hearing, I also indicated that it was appropriate that the final hearing occur as soon as the matter was ready, in part because of the matter's long and difficult history. I reassured Mr Bartram that the matter would not proceed until it was ready to do so. There was nothing in my indication as to when the trial should occur, nor in my reassurance of Mr Bartram, which was critical of his decision to commence proceedings. There is nothing in either of those comments which might cause a fair-minded lay observer to reasonably apprehend that I might not bring an impartial mind to the resolution of the questions I am required to decide.
For the reasons set out above, I dismiss the Application in a Proceeding filed 13 December 2024.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Behrens. Associate:
Dated: 10 February 2025
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