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…
Continue reading Bergeron & Bergeron
Sign in free to access the full text
- AGLC
- Bergeron & Bergeron [2022] FedCFamC1A 140
- Case
- [2022] FedCFamC1A 140
- Decision Date
CaseChat Overview and Summary
The court noted that the primary judge's adverse credit findings against Ms Bergeron were based solely on her cross-examination, and the unavailability of the trial transcript meant that these findings could not be challenged. The court held that this was a significant procedural error that required the appeal to be allowed and the matter to be remitted for rehearing. The court also noted that the absence of the trial transcript made it impossible to assess the primary judge's findings accurately. The court concluded that the appeal should be allowed, and the matter should be remitted for rehearing by a different judge.
The court allowed the appeal and set aside the orders made by the primary judge. The matter was remitted for rehearing by a different judge. The court also granted costs certificates to Ms Bergeron, Mr Bergeron, and the Independent Children's Lawyer for the costs incurred in relation to the appeal and the rehearing. The children were to continue living with their mother, and the father was to have fortnightly time with the children. The children were also to spend time with their father on special occasions, such as Christmas Day and their birthdays. The court granted the mother a costs certificate for the appeal and the rehearing, and the father and the Independent Children's Lawyer were also granted costs certificates for the appeal and the rehearing. The children were to continue attending family therapy, and the costs of the therapy were to be shared equally between the parents.
Orders
Orders of the court
NAA 130 of 2022
SYC 7747 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
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).
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.