BERGERON & BERGERON - [2019] FCCA 1236

FEDERAL CIRCUIT COURT OF AUSTRALIA

BERGERON & BERGERON

[2019] FCCA 1236

Catchwords:
FAMILY LAW – Parenting – whether the father poses an unacceptable risk of harm to the children – whether the father’s time with the children should be supervised – whether the children have a ‘meaningful’ relationship with the father – inability to make findings on disputed facts

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60B, 60CA, 60CC, 61DA

Cases cited:

M v M (1988) 12 Fam LR 606

A & A (1998) FLC 92–800.

Goode v Goode (2006) FLC 93-286

Napier and Hepburn (2006) FLC 90-303

Godfrey and Sanders (2007) FamCA 102

Mazorski & Albright (2007) 37 Fam LR 518

Tait and Dinsmore (2007) FamCA 1383

McCall and Clark (2009) 41 Fam LR 483

Marvel & Marvel (2010) 43 Fam LR 348

Harridge and Anor & Harridge and Anor [2010] FamCA 445

Deiter & Deiter [2011] FamCAFC 82

George & George [2013] FamCAFC 182

Banks & Banks (2015) FamCAFC 36

Britt & Britt (2017) 56 Fam LR 526

Applicant:

MR BERGERON

Respondent:

MS BERGERON

File Number:

SYC 7747 of 2018

Judgment of:

Judge Morley

Hearing date:

29 March 2019

Date of Last Submission:

29 March 2019

Delivered at:

Sydney

Delivered on:

23 May 2019

REPRESENTATION

Counsel for the Applicant:

Mr Schonell

Solicitors for the Applicant:

The Norton Law Group

Solicitors for the Respondent:	Mr Skidmore of Phoenix Legal Consultancy
Solicitors for the Independent Children's Lawyer:	Mr Wilkins of Phillip A Wilkins & Associates

ORDERS

Leave be granted to the legal practitioners and the Independent children’s Lawyer, to inspect the material produced on subpoena by:
(a)Medical Centre A by subpoena dated 8 March 2019; and
(b)Medical Centre B by subpoena dated 8 March 2019.
Leave be granted to the parties to inspect the material produced by NSW Police pursuant to a subpoena dated 8 March 2019.
By consent, orders be made in accordance with the document titled “Minute of Consent Order” as marked “A”, initialled by me, dated today and placed with the Court papers.
All extant applications be adjourned to this Court on 14 May 2019 at 2:15pm for interim hearing (“the interim hearing”).
On or before 4:00pm on 8 May 2019 the solicitors for each party (or, if unrepresented, the parties themselves) forward to Chambers at associate.judgemorley@federalcircuitcourt.gov.au and each other party a brief case outline containing:
(a)The precise orders sought;
(b)A list of the documents to be relied upon;
(c)If relevant, a brief chronology listing significant events;
(d)The issues in dispute;
(e)The main contentions (in light of the legislation); and
(f)Any relevant case law.
The parties each file and serve, an updated Financial Statement and one consolidated Affidavit relevant to the interim hearing by no later than 4:00pm on 3 May 2019, and any further material filed after that date cannot be relied upon for the interim hearing without leave of this Court.
Judgment in respect of today’s interim hearing be reserved.

BY CONSENT THE COURT ORDERS THAT:

The father is hereby restrained by injunction from selling,…

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 BERGERON & BERGERON

Details

AGLC: BERGERON & BERGERON [2019] FCCA 1236
Case: [2019] FCCA 1236
Decision Date: 23 May 2019

CaseChat Overview and Summary

This matter concerned parenting orders before Judge Morley of the Federal Circuit Court of Australia. The proceedings involved allegations that the father posed an unacceptable risk of harm to the children, raising questions about whether his time with the children should be supervised and whether he maintained a meaningful relationship with them. The court also noted an inability to make definitive findings on disputed facts at this stage.

The legal issues before the court included the assessment of risk of harm to the children by the father, the necessity for supervised contact, and the nature of the father's relationship with the children. The court was also required to consider the production and inspection of subpoenaed material from medical centres and the NSW Police, and to determine interim property and spousal maintenance matters.

By consent, the court made orders regarding the inspection of subpoenaed material by the parties and the Independent Children's Lawyer. A Minute of Consent Orders, though unsigned, was also made by consent, and all extant applications were adjourned for an interim hearing. The court issued directions for the parties to provide case outlines, updated financial statements, and consolidated affidavits, and stipulated that material filed after a certain date would not be relied upon without leave. The father was restrained by injunction from dealing with jointly held shares. The interim hearing was limited to the issues of interim spousal maintenance and interim property.

Orders

Orders of the court

Leave be granted to the legal practitioners and the Independent children’s Lawyer, to inspect the material produced on subpoena by:

(a) Medical Centre A by subpoena dated 8 March 2019; and

(b) Medical Centre B by subpoena dated 8 March 2019.

Leave be granted to the parties to inspect the material produced by NSW Police pursuant to a subpoena dated 8 March 2019.

By consent, orders be made in accordance with the document titled “Minute of Consent Order” as marked “A”, initialled by me, dated today and placed with the Court papers.

All extant applications be adjourned to this Court on 14 May 2019 at 2:15pm for interim hearing (“the interim hearing”).

On or before 4:00pm on 8 May 2019 the solicitors for each party (or, if unrepresented, the parties themselves) forward to Chambers at associate.judgemorley@federalcircuitcourt.gov.au and each other party a brief case outline containing:

(a) The precise orders sought;

(b) A list of the documents to be relied upon;

(d) The issues in dispute;

(e) The main contentions (in light of the legislation); and

(f) Any relevant case law.

The parties each file and serve, an updated Financial Statement and one consolidated Affidavit relevant to the interim hearing by no later than 4:00pm on 3 May 2019, and any further material filed after that date cannot be relied upon for the interim hearing without leave of this Court.

Judgment in respect of today’s interim hearing be reserved.

BY CONSENT THE COURT ORDERS THAT:

The father is hereby restrained by injunction from selling, transferring or otherwise dealing with the shared held on [C] Pty Ltd, except by agreement between the parties or an order of this Court.

THE COURT DIRECTS THAT:

All parties and legal representatives attend Court one hour prior to the interim hearing for the purposes of discussions.

10.

All parties and legal representatives are directed to read the subpoena material prior to the interim hearing, and if a party is proposing to tender any subpoena material, they should ‘tab’ the relevant page/s prior to the commencement of the interim hearing.

THE COURT NOTES THAT:

(a) The Minute of Consent Orders does not have the signature of the parties, but consent was indicated by the parties to the Court.

(b) It is the intention of the parties and the Independent Children’s lawyer that a Minute of Consent Orders for a Chapter 15 Expert will be prepared and submitted to chambers.

(c) A party’s material will not be read until the Case Outline document has been received by Chambers in accordance with these directions.

(d) The parties are expected to adhere strictly to the standards set out in the Interim Family Law Proceedings Practice Direction (commenced 1 January 2018) regarding the conduct of interim parenting proceedings.

(e) The interim hearing will be limited to the following issues in dispute:

(i) Interim Spousal Maintenance; and

(ii) Interim Property.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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