Bergeron & Bergeron
[2022] FedCFamC1A 140
•7 September 2022
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Bergeron & Bergeron [2022] FedCFamC1A 140
Appeal from: Bergeron & Bergeron [2022] FedCFamC2F 644 Appeal number(s): NAA 130 of 2022 File number(s): SYC 7747 of 2018 Judgment of: ALDRIDGE J Date of judgment: 7 September 2022 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the primary judge made adverse credit findings against the mother – Where those matters arose from cross-examination – Where the transcript of the trial is not available and as a result those credit findings cannot be challenged – Appeal allowed – Orders set aside – Matter remitted for rehearing – Costs certificates awarded to the parties and the Independent Children’s Lawyer. Legislation: Federal Proceedings (Costs) Act 1981 (Cth) Cases cited: Bhatnagar & Riju [2018] FamCAFC 144
Expectation Pty Ltd v PRD Realty Pty Ltd and Another (2004) 140 FCR 17; [2004] FCAFC 189
Maidment & Insley [2022] FedCFamC1A 48
Paggett & Cable (2015) FLC 93-670; [2015] FamCAFC 186
Number of paragraphs: 7 Date of last submissions: 29 August 2022 Date of hearing: Determined on the papers Place: In Chambers Solicitor for the Appellant: KMJ Family Law Solicitor for the Respondent: The Norton Law Group Solicitor for the Independent Children’s Lawyer: Phillip A Wilkins & Associates ORDERS
NAA 130 of 2022
SYC 7747 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS BERGERON
Appellant
AND: MR BERGERON
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
ALDRIDGE J
DATE OF ORDER:
7 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.Orders 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 of the orders made by the Federal Circuit and Family Court of Australia (Division 2) on 26 May 2022 be set aside.
3.The matter insofar as it relates to parenting orders be remitted for rehearing by a judge other than the primary judge.
4.The Court grants to the mother a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney General to authorise a payment under that Act to the appellant in respect of the costs incurred by the mother in relation to the appeal.
5.The Court grants to the father a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the father in relation to the appeal.
6.The Court grants to the Independent Children’s Lawyer a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Independent Children’s Lawyer in respect of the costs incurred by the Independent Children’s Lawyer in relation to the appeal.
7.The Court grants to the each of the parties and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to them in respect of the costs incurred in relation to the re-hearing.
PENDING FURTHER ORDER, IT IS ORDERED THAT:
8.The children, W born in 2010, X born on … 2013, Y born on … 2014, and Z born on … 2017, live with their mother.
9.The children Y and Z shall spend time with their father in a fortnightly pattern:
(i)In Week 1: From the end of school on Friday until the start of school on Monday; and
(ii)In Week 2: From the end of school on Wednesday until the end of school on Friday,
with the first such occasion of time in Week 1 to occur on Friday, 9 September 2022.
10.The children W and X shall spend time with their father in the company of their sisters Y and Z on the occasions provided for in these orders, when W and X express a wish to so spend time with their father, and if one of W or X express a wish, then the child expressing a wish shall spend time with her or his father.
11.Changeovers not occurring at the children’s schools or preschools for Y and Z, and W and X where they express a wish to spend time with the father, shall occur by a third party collecting the children from the front door of the mother’s place of residence at the commencement of their time with the father and a third party delivering the children back to the front door of the mother’s place of residence at the conclusion of their time with the father.
12.The children Y and Z shall spend time with their father on 25 December from 9.00 am until 1.30 pm, with W and X to join their sisters should they, or either of them, express a wish to do so.
13.The children Y and Z shall spend time with the father on Father’s Day if they are not otherwise in the care of the father on Father’s Day from 9.00 am until 5.00 pm, with W and X to join their sisters should they, or either of them, express a wish to do so.
14.The children Y and Z shall spend time with the father for three hours on each of Y and Z’s birthdays if they are not otherwise in their father’s care on that day, and on each of or either of W and X’s birthday if they are not otherwise in their father’s care and W and X, or either of them, express a wish to spend time with their father.
15.The father shall spend time with Y, Z, W and X, or any of them, as otherwise agreed between the parties in writing.
16.The mother and the father each keep each other informed of their email address and mobile telephone number.
17.The mother keep the father informed by SMS or email of any issue regarding the children’s education and health, including details of all health professionals providing care to the children.
18.Each of Mr Bergeron born … 1983 and Ms Bergeron born … 1982 and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of W born … 2010, X born … 2013, Y born ... 2014, and Z born … 2017 from the Commonwealth of Australia.
19.The children, W born … 2010, X born … 2013, Y born … 2014, and Z born … 2017 be and are hereby restrained from leaving the Commonwealth of Australia.
20.It is requested that the Australian Federal Police give effect to the preceding order by placing the names of the said children on the Family Law WatchList in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Family Law WatchList pending further order.
21.The children shall continue to attend upon the agreed family therapist for family therapy and the parents shall continue to facilitate same.
22.Each of the mother and the father shall do all things necessary to comply with all requests and recommendations of the selected family therapist providing family therapy.
23.The costs of the family therapy for W and X be shared equally between the mother and the father.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bergeron & Bergeron has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
In this appeal the parties and the Independent Children’s Lawyer jointly ask the Court to allow the appeal, to remit the matter for rehearing and to make costs orders under the Federal Proceedings (Costs) Act 1981 (Cth). The Court will only do so where it is satisfied that the decision the subject of the appeal is affected by appealable error (Bhatnagar & Riju [2018] FamCAFC 144 at [3]).
The orders made by the primary judge concerned the parenting arrangements for four of the parties’ children. The hearing was conducted over four tranches between August 2020 and March 2021. His Honour delivered reasons for judgment and made orders on 26 May 2022.
In the reasons, his Honour made a number of adverse credit findings against the appellant (at [1043] and referring back to findings at [491]–[495] and [527]). These matters arose from the cross-examination of the appellant which took place on 26 August 2020.
Due to the fault of the courts transcript provider, no sound recording exists of 26 August 2020 and no transcript can be prepared. It follows that the appellant is unable to challenge the factual basis for the adverse findings made by the primary judge. Such a challenge requires more force because of the 19 month gap between the evidence being given and the delivery of reasons (Expectation Pty Ltd v PRD Realty Pty Ltd and Another (2004) 140 FCR 17; Paggett & Cable (2015) FLC 93-670).
In Maidment & Insley [2022] FedCFamC1A 48, the Full Court held that the availability of the record of the hearing is implicitly to the exercise of the court’s appellate jurisdiction. At [16], McClelland DCJ and Tree J said that:
16.Because this appeal concerned, to a substantial degree, challenges to the use to which the oral evidence was applied, and how or whether regard was had to it, the result in this instance must be to set aside the judgment and remit it for further hearing. Despite the appellant’s desire that this Court re-exercise the discretion, the absence of the record at first instance means that this simply cannot occur.
That is the case here and as the relevant transcript is unavailable, the appeal must be allowed. In the circumstances, it is appropriate to grant costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) to the parties and the Independent Children’s Lawyer for both the appeal and the rehearing.
In respect of the parenting arrangements pending the rehearing of the matter, the respondent and the Independent Children’s Lawyer submitted that the orders of 20 June 2022, which were the interim parenting orders put in place by the primary judge pending the outcome of the appeal, should be made again. The appellant neither consented nor opposed such orders. It is appropriate to make these orders so that there are parenting orders in place until the matter is re-listed before the Federal Circuit and Family Court of Australia (Division 2).
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 7 September 2022
0
4
1