Bartram & Marsden (No 5)
[2025] FedCFamC1F 75
•13 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bartram & Marsden (No 5) [2025] FedCFamC1F 75
File number(s): SYC 6927 of 2019 Judgment of: BEHRENS J Date of judgment: 13 February 2025 Catchwords: FAMILY LAW – INTERIM HEARING – Stay Application – Where the Applicant seeks a stay of interim parenting orders pending the determination of an appeal – Where the Applicant has filed a Notice of Appeal – Where the Applicant was self-represented and was directed to authoritative case law concerning stay applications – Where the Applicant contended that the supervised time provided for in the interim orders is not in the best interests of the children – Where there is no evidence that the previously identified risks of unsupervised time have been ameliorated – Where it is currently difficult to assess the prospects of success of the appeal – Where the appeal will not be rendered nugatory in the absence of a stay – Where it is not in the children’s best interests to stay the interim orders providing for supervised time with the Applicant – Application dismissed. Cases cited: Aldridge and & Keaton (Stay Appeal) [2009] FamCAFC 106
K & B (2006) FLC 93-288; [2006] FamCA 848
Trahn & Long (No 2) [2008] FamCAFC 194
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:
13 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 23 December 2024 is dismissed.
2.The matter is listed for case management before Justice Behrens at 9.30am on 16 April 2025.
3.The Contravention Application filed 29 October 2024 is stood over to the final hearing of this matter.
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, whose parents are Mr Bartram and Ms Marsden. The children’s interests in these proceedings are represented by Ms Foini, the Independent Children’s Lawyer (“ICL”).
On 26 November 2024, I made interim orders which discharged certain of the final parenting orders made by Curran J on 14 August 2023 (“the 2023 final orders”), and provided for X and Y to have professionally supervised time with Mr Bartram (“the interim orders”). By a Notice of Appeal filed 20 December 2024 (“the Notice of Appeal”), Mr Bartram has appealed those orders. The Notice of Appeal is listed for directions on 19 February 2025.
Before me on 10 February 2025 was Mr Bartram’s Application in a Proceeding filed 23 December 2024 (“the stay application”), in which he sought that the interim orders be stayed pending the determination of the Notice of Appeal. Mr Bartram was self-represented at the hearing of the stay application. I heard the stay application after I had dismissed his application, made by way of a separate Application in a Proceeding, that I disqualify myself from further involvement in the matter.
The stay application was supported by an affidavit of Mr Bartram, also filed on 23 December 2024. I received that affidavit with its annexures into evidence. I also received an affidavit of Mr Bartram filed on 13 December 2024 into evidence. Mr Bartram also tendered an email chain in relation to supervised contact, which was received into evidence and marked F3. I also received the Notice of Appeal into evidence. Mr Bartram indicated that he intended to file an amended Notice of Appeal. I also had before me my Reasons for Judgment dated 26 November 2024 (“Reasons for Judgment”).
The ICL filed a Case Outline late on 9 February 2025, in which she indicated that she sought that the stay application be dismissed. Ms Marsden filed a Response to an Application in a Proceeding on 9 February 2025, in which she sought the dismissal of the stay application. Whilst Ms Marsden also filed an affidavit, she did not rely upon it, which was appropriate given that it was filed so late.
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 hard copy of that outline and the decision in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 (“Aldridge & Keaton (Stay Appeal)”). I directed him to the list of principles from that decision, which were included in the ICL’s Case Outline.
The principles to which I am to have regard when considering Mr Bartram’s application to stay the parenting orders are well settled, and have been discussed by the Full Court in Trahn & Long (No 2) [2008] FamCAFC 194 at [38], and again in Aldridge & Keaton (Stay Appeal) at [18] as follows:
The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:
•the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;
•a person who has obtained a judgment is entitled to the benefit of that judgment;
•a person who has obtained a judgment is entitled to presume the judgment is correct;
•the mere filing of an appeal is insufficient to grant a stay;
•the bona fides of the applicant;
•a stay may be granted on terms that are fair to all parties – this may involve a court weighing the balance of convenience and the competing rights of the parties;
•a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;
•some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;
•the desirability of limiting the frequency of any change in a child’s living arrangements;
•the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and
•the best interests of the child the subject of the proceedings are a significant consideration.
Additionally, with respect to best interest considerations, the Full Court in K & B (2006) FLC 93-288 held at [32] that:
…in cases involving children, we accept that from time to time circumstances in existence at the date of the orders, or which occur from the date of orders until the hearing of a stay application, may be very relevant matters to be considered in the exercise of discretion in determining whether or not to grant a stay. The interests of children would not be promoted by an inflexible requirement or presumption in every case to maintain the status quo prior to the making of orders the subject of the stay application, and to ignore unsatisfactory arrangements at the time of the orders, or significant events which have occurred after the making of those orders.
Mr Bartram made submissions to the effect that the interim orders were not in Y or X’s best interests, and identified what he said were errors in my decision, including in my identification of certain facts as “undisputed.” In his affidavit filed 23 December 2024, he gave evidence that the supervised time provided for in the interim orders had not taken place, and that he now has not spent time with Y or X, other than at Y’s school, for about 12 months. His evidence about why supervised time has not occurred is as follows (typographical errors corrected):
(1)“[GG Contact Service] have not offered their service to me as I have raised the concern that the procedures that they intend to implement when interacting with [X] and [Y] would discredit the trust and faith they have in me” (affidavit filed 23 December 2024, paragraph 10)
(2)“[MM Contact Service] is not an alternative option as they complete the same procedures that would question the trust and faith that [X] and [Y] have in me and their Family” (affidavit filed 23 December 2024, paragraph 12).
Mr Bartram annexed to his affidavit filed 23 December 2024 some emails between him and the contact centres, in which he raises concerns about the supervision and intake processes. Those emails show that:
(1)Mr Bartram undertook an intake session of more than 2 hours at GG Contact Service in late 2024;
(2)In late 2024, Mr Bartram wrote to GG Contact Service:
I have no control over the events you are organising with [Ms Marsden] and the kids. [Ms Marsden] has always dreamt of handing over the kids to me at a contact centre, she requested it to be ordered in 2019, I’d suggest that she is excited to make use of the services you offer;
(3)Mr Bartram wrote to GG Contact Service again on the same day raising his concerns about what may be said and done at the contact centre, including:
I have concerns about the request you are going to make of my very young kids to be careful of what they discuss with me. It seems a significant amount of pressure to place on such young kids. I don’t make such serious demands of my young kids and that has fostered a strong and trustworthy relationship I have had with them;
(4)Mr Bartram complained about lack of responses, and in reply to a perfectly appropriate email from GG Contact Service stated:
I don’t wish to be involved in a discussion about the standard processes of all contact centres in Australia. There are many unique features of my family law matter that may differentiate me from other customers you have, some of which I have explained in the previous email to you.
(5)Mr Bartram wrote to GG Contact Service on the following day:
Thanks for your email.
Why do you consider it important that my relationship with the kids continue? Can you elaborate on this statement?
It’s good to know that [GG Contact Service] will not be requesting my children don’t talk to me. However it is a concern that I didn’t suggest this would occur though.
I apologise again but I won’t be able to consent to your employees offering my children reassurance that they are safe. I have already explained the reasoning for this.
Ultimately, in late 2024, GG Contact Service wrote to Mr Bartram notifying him that the family’s application to use the service had been deemed unsuitable, on the basis of Mr Bartram’s refusal to consent to GG Contact Service staff speaking to the children about safety – his decision being informed by concerns that the children would consequently form the view that he is not a safe person. GG Contact Service indicated that, accordingly, the child familiarisation session and completion of the assessment process could not proceed.
Following a suggestion that MM Contact Service be used as an alternate supervisor, Mr Bartram wrote to MM Contact Service and identified similar concerns to those he had raised with GG Contact Service. When MM Contact Service indicated that an Intake Assessment is required, and that there were no intake appointments available, Mr Bartram responded:
[…],
I don’t require an assessment. That has already been completed by [GG Contact Service]. I spoke with them for 2 hours and 15 minutes.
I would ask again that you read the reasoning that [GG Contact Service] will not be offering their service to my family and confirm that your organisation conducts the same processes that I have indicated will destroy the trustworthy relationship I have with my kids.
I would prefer that your organisation refrain from implementing procedures that are intended to prolong the estrangement of my children from me and the rest of my family with futile tasks, such as completing another intake process. It could be argued that the back and forth on this email trail is such a process that is not necessary.
Before me, Mr Bartram reiterated his view that professionally supervised time will be damaging to his relationship with X and Y, because it will cause them to think that he is a risk to them. He reiterated that he will not take up supervised time. He added that he was concerned that inaccurate things might be written down about him by supervisors, and that time spent with the children whilst under the supervision of someone else was not an appropriate arrangement because “it feels a bit false to me, it doesn’t feel like real time”.
I take into account that the interim orders which I determined were in Y’s and X’s best interests have not been implemented because Mr Bartram takes the view that supervised time is not in their best interests, and that Y and X have now been deprived of any significant time with their father for about 12 months. That is in circumstances where they were pining to spend time with Mr Bartram. Mr Bartram urged me to stay my orders. He told me that, as a result of certain amendments which were recently made by the Full Court to the 2023 final orders, a stay would mean that the children would return to spending time with him each Wednesday overnight and from 9.00 am to 5.00 pm on Saturday. He submitted that the “confusion” which had arisen because of his inability to undertake a men’s behavioural change program had now been overcome by the amendments to the orders.
I made the interim orders requiring supervision because I found that “there is a conglomeration of risk factors which would make unsupervised time for the children with [Mr Bartram] unsafe” (Reasons for Judgment, paragraph 44). I took into account that the Court Child Expert had opined that “[t]here is concern that his [Mr Bartram’s] distress may lead him to behave in a way that may be harmful to the children and [Ms Marsden]” (Reasons for Judgment, paragraph 43). There is no new evidence before me which persuades me that is no longer the case. Indeed, as the ICL pointed out, some of Mr Bartram’s evidence causes additional concern about the children’s safety in his care. While Mr Bartram gave evidence that “I am not suicidal and nor do I have suicidal thoughts” (affidavit filed 13 December 2024, paragraph 9), he makes several references to suicide in that affidavit, as well as the affidavit filed 23 December 2024:
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 (affidavit filed 13 December 2024, paragraph 8)
The statements and decisions made by Justice Behrens are intended to make me feel powerless and invoke a suicidal state of mind in me (affidavit filed 13 December 2024, paragraph 12).
The absence of the children in my life is intended to drive me to suicide as the most meaningful moments are being taken from me and they cannot be replaced (affidavit filed 23 December 2024, paragraph 22).
At the final hearing, I will have before me expert evidence about these and other matters to enable me to make appropriate findings and reach an appropriate decision. At this stage, I must proceed cautiously. The risk issues I have identified outweigh the significant disadvantage of the interim orders, namely, that as a consequence of Mr Bartram’s decision that professionally supervised time is not in the children’s interests (even if that is the only time they can have with him), the children are now having no time whatsoever with Mr Bartram or with their extended paternal family. It would not be in the children’s best interests to stay the interim orders.
It is difficult to assess Mr Bartram’s prospects of appeal based on the current Notice of Appeal. He has indicated he intends to amend it. I am prepared to assume that he has arguable grounds, notwithstanding that his appeal faces at least the usual difficulties involved in an appeal from a discretionary decision, and from interim parenting orders. I am prepared to assume Mr Bartram’s bona fides.
Mr Bartram’s appeal from the interim orders will not be rendered nugatory by a failure to stay the interim orders.
For the reasons set out above, bearing in mind that Mr Bartram does not need to show special or exceptional circumstances, and also the other principles outlined in Aldridge & Keaton, I am not satisfied that there is a proper basis for the stay. Mr Bartram has not discharged his onus, and I dismiss the Application in a Proceeding filed 23 December 2024.
The matter is listed for directions on 16 April 2025. At that time, I anticipate listing the matter for final hearing commencing 2 June 2025. The Contravention Application filed by Mr Bartram on 29 October 2024 is put over to the final hearing of this matter.
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: 13 February 2025
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