Bartram & Marsden (No 3) [2025] FedCFamC1A 77 (7 May 2025)

De Winter and De Winter (1979) FLC 90-605

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Graham & Squibb (2019) FLC 93-892; [2019] FamCAFC 33

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84

House v The King (1936) 55 CLR 499; [1936] HCA 40

Nimesh Watapaldeniya v Transport Accident Commission [2022] VSCA 50

Pascoe & Larsen (No 2) [2022] FedCFamC1A 126

Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88

Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54

Warbrick & Warbrick (No. 2) (2021) FLC 94-030; [2021] FamCAFC 101

1. The Notice of Appeal filed 20 December 2024 is dismissed.
2. The appellant pay the respondent's costs fixed in the sum of $4,538.60 within 42 days.

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).

1. By Notice of Appeal filed 20 December 2024 the appellant father ("the appellant") appeals orders made in proceedings pursuant to Part VII of the Family Law Act 1975 (Cth) ("the Act"). The appeal is opposed by the respondent mother ("the respondent"). The Independent Children's Lawyer ("ICL") who took part in the hearing at first instance filed a Submitting Notice and did not seek to be heard.
2. For reasons that will become apparent, the appeal will be dismissed.

1. On 14 August 2023, following a four-day hearing, a judge of Division 1 of the Federal Circuit and Family Court of Australia ("the trial judge") made final orders pursuant to Part VII of the Act which provided for the parties' two young children to live with the respondent and spend time with the appellant as agreed and failing agreement during school terms and school holidays. The trial judge recorded these reasons as Bartram & Marsden [2023] FedCFamC1F 644 ("the trial judge's reasons").
2. A pre-condition to the orders progressing to overnight weekend and school holiday time was the appellant's attendance upon a Men's Behaviour Change Program. Until such time as the appellant completed the program, his time with the children would occur each Wednesday from after school until Thursday before school and each Saturday from 9.00 am to 5.00 pm.
3. The appellant appealed the final orders and on 23 November 2023 his appeal was dismissed.
4. In December 2023, the appellant advised the respondent that he could not complete the Men's Behaviour Change Program. Thereafter the appellant retained the children on three occasions in January and February 2024. On 14 February 2024, the respondent ceased all time between the children and the appellant.
5. On 8 April 2024, the appellant filed an Initiating Application seeking that the children live with him and that he have sole parental responsibility. On 13 November 2024, the respondent filed a Further Amended Response seeking that the appellant have no time with the children and that she be permitted to relocate to the United Kingdom.
6. On 26 November 2024, a different judge of Division 1 of the Federal Circuit and Family Court of Australia ("the primary judge") heard the parties' then competing interlocutory applications. The appellant sought orders for sole parental responsibility, for the children to live with him, and for the mother to be psychiatrically assessed. The respondent for her part sought a discharge of all existing orders and an order for no time between the children and the appellant. The ICL proposed a discharge of the final parenting orders and for the children to spend time with the appellant supervised for at least two hours each alternate week.
7. The primary judge recorded at [11] that the parties had on 5 August 2024 consented pursuant to s 65DAAA(3) of the Act to a reconsideration of the final orders and recorded at [15] that orders for the preparation of a Family Report have already been made.
8. The primary judge in her judgment cited as Bartram & Marsden (No 3) [2024] FedCFamC1F 825 ("the primary judge's reasons") recorded the evidence that each party relied upon, correctly observed the relevant law, identified that the evidence revealed that there were significant risks to the children, and noted that she was to adopt a cautious approach to the determination of the competing applications. The primary judge observed that she was able to undertake a risk assessment based on many of the largely undisputed facts and the findings that had been made in the trial judge's reasons at the final hearing in August 2023 at [33].
9. The primary judge recorded that both parties raised issues of safety in relation to the children in the care of the other party including allegations of psychological harm and risk. The appellant raised concerns about the children's safety in the care of the respondent while the respondent raised concerns about the appellant's mental health, that he had behaved erratically including withholding the children, and that she was frightened of him.
10. The primary judge recorded various findings made by the trial judge including the evidence of the appellant's treating psychiatrist that he was in good mental health and that his mental health presented a low but relevant unacceptable risk of harm to the children at [38(1) and (2)]. The primary judge recorded the trial judge was satisfied that the risk of harm could be ameliorated by him attending upon his treating psychiatrist at [38(4)].
11. The primary judge found that there was "a conglomeration of risk factors which would make unsupervised time ... unsafe" at [44]. Having so determined, the primary judge concluded the only arrangement that was safe for the children was for the appellant's time to be professionally supervised at [45]. She noted that the Child Impact Report recorded that the children were "pining for their father and want to spend time with him albeit with strict ground rules which are complied with" at [47]. The primary judge was satisfied that there was no risk the respondent would abscond with the children and determined that it was appropriate to make injunctive orders as sought by the ICL to restrain the appellant from attending at the children's schools at [48]-[49].
12. The primary judge recorded as follows:
    1. 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.

1. The Notice of Appeal by its form requires an appellant to set out in a precise and concise way the asserted error. The appellant's Notice of Appeal fails to set out "a specific and concise statement of the point sought to be argued" (Nimesh Watapaldeniya v Transport Accident Commission [2022] VSCA 50 at [2]). Instead, it purports to list eight grounds, none of which are instantly recognisable as a ground of appeal as opposed to a complaint as to outcome.
2. The Summary of Argument is of no greater assistance. It does not comply with r 13.23(2)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules") in that it does not sequentially deal with the asserted grounds elucidating error. As with the Notice of Appeal, it primarily addresses the appellant's grievances as to the result of the hearing before the primary judge.
3. While we accept that the appellant is not a lawyer, the Notice of Appeal and Summary of Argument render opaque that which should be transparent. It is not the task of the appellate division of the Court to "hunt through" the judgement in an endeavour to discern error unless there arises a suspicion that in doing so an appealable error will be discovered (Bahonko v Sterjov [2008] FCAFC 30; (2008) 166 FCR 415 at [3]). In this instance, a review of the primary judge's reasons and the Digital Appeal Book gives rise to no such suspicion.
4. The determination at hand is one that involves the exercise of a wide discretion. The primary judge is presumed to be correct unless it can be established that the discretion reposed in the primary judge miscarried in the terms articulated in House v The King (1936) 55 CLR 499 at 505.
5. It is trite to say, but bears repeating, that an appeal is not a re-running of the case as presented before the primary judge in an endeavour to convince this Court that it should, absent identifiable appealable error, come to a different determination.

5. [The primary judge] stated in the hearing that she intended to remove the order which states that I am required to complete the behaviour change course just before I was to speak the argument in court. The statement was intended to esnure [sic] that I wouldn't present the argument to have the order removed.

7. [The primary judge] victimsied [sic] me at the hearing on the 26th of November when she said "he will appeal no matter what I order."

1. Whilst not clearly articulated, these grounds seem to challenge the integrity of the hearing in asserting that the appellant was either not permitted to be heard or was "victimised".
2. Consistent with authority, where an appeal contends allegations of procedural fairness or apprehended bias then such grounds must be dealt with first (Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]).
3. Ground 5 infers that the appellant was not heard about the discharge of the order that he attend a Men's Behaviour Change Course as the primary judge said that she would discharge the order. A review of the transcript reveals that the ground misrepresents what happened. The primary judge, in exchanges with the ICL, proposed rhetorically in response to a submission made by the ICL that she should discharge the order (Transcript 26 November 2024, p.25 line 34). Nothing said by the primary judge foreclosed the making of any submission by the appellant.
4. As it was, the primary judge did not discharge the order but made other orders that obviated the necessity to do so. The logic of the appellant's complaint is not immediately apparent, however a complaint about procedural fairness will only succeed where it is demonstrated that the asserted denial was material to the determination (Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 145). When the judgment is read as a whole it is readily apparent that the statement by the primary judge had no bearing on the final determination and thus lacks the necessary materiality.
5. Ground 5 has no merit.
6. Ground 7 contends that the appellant was "victimised" because the primary judge remarked that he would appeal. The transcript reveals the following exchange between the primary judge and the ICL:

MS JJ: The issue, your Honour, is the harm emotionally that that would do to the mother in the sense that it would catapult this case right back to 2019, when the father's time was originally supervised for the first two orders that were made by now Judge Campbell. Essentially, the father will, based on his conduct in these proceedings to date, we know that, more likely than not, he will file an appeal of such order. He has already indicated to your Honour that he will ask you for reasons of judgment. It is likely that he will - - -

HER HONOUR: And he will probably file an appeal on whatever order I make, won't he? So that's not really helpful.

MS JJ: The other problem is that we know contact centres are not meant to be a forever thing. They are something meant to be temporary. And in circumstances where the father has indicated to this court and the child court expert that he will withhold them, that is their request.

(Transcript 26 November 2024, p.52 line 42 to p.53 line 10)

1. The appellant responds to the statement made by the primary judge in his submissions in reply where he says:

MR BARTRAM: So I haven't lost time with my kids ordered by a court. If it were to happen today, you would be the first one to do it. And, of course, I mean, what process do I have? Do I just roll over and never see my kids again? I don't know what - when you've said, "He will appeal anything", no, I wouldn't. I wouldn't appeal if you got them to live with me. I wouldn't appeal if you changed their schools, given that their school is hell-bent on clearly fabricating domestic violence against me. When I - - -

HER HONOUR: So you really think changing the [children's] schools is in their best interests?

MR BARTRAM: Yes, I do. I think it's necessary. I do. Absolutely. I think given what happened [in ...] June, when [X's] teacher said to me that, "It's not your court-ordered time", when I didn't even mention the court orders, never sent them the court orders, never asked for them to be involved, you know, that's clear grounds that I don't know where that person was coming from...

(Transcript 26 November 2024, p.62 line 43 to p.63 line 11)

1. The appellant does not identify how he was "victimised" by what at its highest was a 'throw away' line by the primary judge. If by that statement he contends that the primary judge displayed apprehended bias, then the test requires the establishment of two limbs. Firstly, an identification of what it is said might lead the judge to decide the particular case other than on its merits and, secondly and more importantly, the articulation of the logical connection between the first matter and the feared deviation from the course of deciding the case on its merits (Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 ("Ebner")).
2. As their Honours observed in Ebner, to succeed on a ground of apprehension of bias, the appellant must establish that:
   1. ... 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...

1. At no point, whether in the ground, the Summary of Argument, nor the oral submissions has the appellant identified the complained of conduct sufficient to make good the first limb of Ebner. Further, a reading of the transcript as a whole does not reveal that the rational, not unduly suspicious, hypothetical observer would find the statement by the primary judge "might lead a judge to decide a case other than on its legal and factual merits" (Ebner at [72]).
2. There is no merit to Ground 7.

1. There has been a substantial injustice and the new orders made by [the primary judge] have placed the children in this matter at an increased risk of harm. [The primary judge] has discharged all the final spend time orders based on several incorrect facts. [The primary judge] completed a 2 hour hearing that discharged final spend time orders that were made after a 4 day trial. [The primary judge] stated in her reasoning for judgement that it was an undisputed fact between the parties that I kept the children from [the respondent] on three occasions, this is not true and the evidence that was presented does not support this assertion. [The primary judge] gave no weight to the agreed fact between the parties that [the respondent] has ensures the children have not spent time with me for over 280 consectutive [sic] nights

4. [The primary judge] gave no weight to the safety concerns I have for the Children and nor the childrens human rights to have a relationship with me and the rest of their family and their right to be protected from harm.

1. Ground 1 seems to contend an error on the part of the primary judge in determining that it was an undisputed fact that the appellant had "kept the children from the respondent on three occasions" and failed to give weight to the appellant's contention that the children have not spent time with the appellant for over 280 nights, while Ground 4 contends the primary judge gave no weight to safety concerns, the children's right to a relationship with the appellant and his family, and their right to be protected from harm.
2. The primary judge found that the appellant unilaterally withheld the children on three occasions in January and February 2024. The primary judge describes it, amongst other contentions, as "not disputed" at [39(1)]. Whether the primary judge's description as "not disputed" is correct, the finding is unimpeachable as it accords with the evidence and the orders made by the trial judge. Thus, even assuming the primary judge was in error in describing it as "not disputed" it is of no consequence and lacks the necessary materiality to invite appellate intervention (De Winter and De Winter (1979) FLC 90-605).
3. The primary judge accurately recorded that the respondent had not facilitated time since 14 February 2024 at [6] consequent upon the appellant's failure to complete a Men's Behaviour Change Program and recorded that the Child Impact Report made it clear that the children wanted to see their father at [47]. It is not accurate to contend that no weight was given to the fact that the children had not seen their father.
4. Ground 4 as drawn is specious in so far as it contends that the primary judge gave no weight to the issues of harm, safety, and the children's right to a relationship with the appellant and his family. The primary judge considered these matters at [22]-[23], [34]-[45], and [47]-[50] of her reasons.
5. The appellant's contention of error by attribution of no or little weight to a particular fact cannot succeed absent a contention, which is not advanced here, that the determination was manifestly unreasonable or unjust (Hedlund & Hedlund [2021] FedCFamC1A 84; (2021) FLC 94-065). As observed by Stephen J in Gronow v Gronow (1979) 144 CLR 513 at 520:

... an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight ...

2. At the directions hearing on he [sic] 10th of December, [the primary judge] made the statement that the length of these proceedings is a reason for her to list this matted for a final hearing in 6 months time, which she intends to preside over. I have stated that the length of the proceedings are an indication of the length that [the respondent] will go to to [sic] destroy the childrens relationship with their family and this fact is putting the children and an increased risk of harm.

3. The orders that have been made will involve the Children being cross examined and interviewed before and after I meet with them at a contact centre. This has been ordered despite the children already participating in a child expert report which clearly stated their opinion that they want to go back to the mid weekly overnight and weekend time with me. The children are desperate to have a relationship with their famil [sic] as am I.

6. [The primary judge] has made orders that are not in the children's interests and are intended to gather new evidence that is designed to have the evidence in the child expert report forgotten and dismissed.

8. [The respondent] and her legal team have not filled out a form I have requested which lists the family and domestic violence incidents that she aleges [sic] has occurred.

1. These grounds can only invite appellate intervention if they identify error on the part of the primary judge. At their highest they amount to no more than a submission or the recording of a concern on the part of the appellant and must accordingly fail.

1. We observe in passing that during the conduct of the appeal, we were advised that on 16 April 2025 the primary judge allocated final hearing dates to commence on 2 June 2025. Despite raising with the appellant the utility of the appeal given the proximity of the hearing dates, he pressed we determine the appeal. The efficacy of doing so escapes us even assuming the appellant had been successful in establishing error, which he was not.
2. For the reasons given above, the Notice of Appeal will be dismissed.

1. In circumstances where the appeal is without merit, has been unsuccessful, and where it had, in light of the allocation of hearing dates, no utility, we are satisfied that an order for costs is justified.
2. The respondent seeks an order in a fixed amount. The Rules and authorities make plain that we can fix an amount for costs (Pascoe & Larsen (No 2) [2022] FedCFamC1A 126; Graham & Squibb [2019] FamCAFC 33; (2019) FLC 93-892). In circumstances where these parties have been engaged in litigation over a long period, including now two failed appeals, we propose to adopt the approach taken by the Full Court in Warbrick & Warbrick (No. 2) (2021) FLC 94-030 where the Full Court observed that it did "not intend to permit the costs question to become, in effect, satellite litigation" at [13]. We propose to adopt such reasoning. The quantum sought is modest and reasonable.
3. We are satisfied that it is proper that we fix an amount for the respondent's costs in the sum of $4,538.60 and will order such amount to be paid within 42 days.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Williams, Schonell, and Smith.