Bartram & Marsden (No 5) - [2025] FedCFamC1F 75

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bartram & Marsden (No 5)

Details

AGLC: Bartram & Marsden (No 5) [2025] FedCFamC1F 75
Case: [2025] FedCFamC1F 75
Decision Date: 13 February 2025

CaseChat Overview and Summary

In the Family Court, Mr Bartram sought to stay interim parenting orders which mandated supervised visits with his children. Ms Marsden opposed the application, asserting that the supervised visits were in the children's best interests and that there was no evidence that the risks previously associated with unsupervised visits had been addressed. The court was tasked with determining whether to grant a stay pending the appeal of the interim orders, which would require balancing the interests of the children against the potential success of the appeal.

The court examined the legal criteria for granting a stay, including the likelihood of success on the appeal, the effect of the appeal on the children, and whether the children's best interests would be served by a stay. The Applicant, who was self-represented, had filed a Notice of Appeal but had not provided sufficient evidence that the previously identified risks of unsupervised visits had been resolved. The court found it challenging to assess the prospects of success of the appeal and concluded that it was not in the children's best interests to stay the interim orders that provided for supervised time with the Applicant. The court also noted that the appeal would not be rendered nugatory without a stay.

The court dismissed the application for a stay, finding that the risks associated with unsupervised visits remained unaddressed and that it was not in the children's best interests to alter the interim arrangements. The court scheduled the matter for case management to further address the issues raised in the appeal. The contravention application was stood over until the final hearing of the matter.

The court's order dismissed the stay application and maintained the interim parenting orders, with the case management hearing set for a future date. The contravention application was postponed pending the resolution of the main appeal.

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:

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.

Background

Background to the litigation

Full text does not contain this section.

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.

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

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