Bergeron & Bergeron (No 2)
[2022] FedCFamC2F 722
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bergeron & Bergeron (No 2) [2022] FedCFamC2F 722
File number(s): SYC 7747 of 2018 Judgment of: JUDGE MORLEY Date of judgment: 26 May 2022 Catchwords: FAMILY LAW – Procedure – application for a stay of final orders – final orders for children to change residence – whether Court has jurisdiction to grant stay – whether Court has power to grant stay – whether Court will exercise its power to grant a stay – where Court finds it has jurisdiction and power to grant stay – where Court exercises power to grant stay for three and a half weeks on terms and conditions – applicant to the stay consented to orders including spend-time-with orders as a condition of the stay – Court made additional orders as conditions of the stay. Legislation: Family Law Act 1975 (Cth) s 45.
Family Law Rules 2004 (Cth) r 109.
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth).
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.31, 1.32, 13.12.
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 38.
Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Cape & Cape [2013] FamCAFC 114
EJK & TSL (No. 2) [2006] FamCA 806
Maidment & Insley [2022] FedCFamC1A 48
Sheldon & Weir (No. 4) [2010] FamCA 1214
Tran & Long (No. 2) [2008] FamCAFC 922
Division: Division 2 Family Law Number of paragraphs: 63 Date of hearing: 26 May 2022 Place: Sydney Counsel for the Applicant: Mr O’Reilly Solicitor for the Applicant: The Norton Law Group Counsel for the Respondent: Mr Looney QC Solicitor for the Respondent: KMJ Family Law Solicitor for the Independent Children's Lawyer: Mr Wilkins of Phillip A Wilkins & Associates ORDERS
SYC 7747 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BERGERON
Applicant
AND: MR BERGERON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE MORLEY
DATE OF ORDER:
26 MAY 2022
PENDING FURTHER ORDER, THE COURT FURTHER ORDERS THAT:
1.These orders are stayed until 11:30AM today 26 May 2022.
2.Leave is granted to the Mother to make a verbal application for a time-limited stay of the final orders made today.
3.Orders 5 to 18 of these orders are stayed until 4:00PM on 24 June 2022 on terms and conditions.
4.It is a condition of the stay granted today that the children Y born in 2014 and Z born in 2017 spend time with their Father each Saturday, unsupervised, from 9:00AM until 5:00PM.
5.It is a condition of the stay granted today that the children W born in 2010 and X born in 2013 spend time with their Father in company with their younger sisters Y and Z on the occasions provided in these orders on occasions where they express any wish to spend that time with their Father.
6.It is a condition of the stay granted today that changeover for Y and Z and, if they are attending, W and/or X, shall occur by a third party nominated by the Father collecting the children from the front door of Mother’s place of residence at the commencement of time and delivering the children to the front door of the Mother’s place of residence at the conclusion of the Father’s time.
7.It is a condition of the stay granted today that each of Mr Bergeron born in 1983 and Ms Bergeron born in 1982 and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of:
(a)W, a female born in 2010;
(b)X, a male born in 2013;
(c)Y, a female born in 2014; and
(d)Z, a female born in 2017,
from the Commonwealth of Australia.
8.Each of:
(a)W, a female born in 2010;
(b)X, a male born in 2013;
(c)Y, a female born in 2014; and
(d)Z, a female born in 2017,
be and are hereby restrained from leaving the Commonwealth of Australia.
9.It is requested that the Australian Federal Police give effect to the preceding order by placing the names of the said children on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until further order.
10.The proceedings are listed for interlocutory hearing as to a stay of the final orders made today at 9:30AM on 20 June 2022.
11.It is a condition of the stay granted today that the Mother file and serve a Notice of Appeal by no later than 4:00PM on 17 June 2022.
12.It is a condition of the stay granted today that the Mother file and serve a formal application for a stay by no later than 4:00PM on 9 June 2022.
13.The Father is to file a response to the Mother’s application for a stay by no later than 4:00PM on 16 June 2022.
14.The Independent Children’s Lawyer is to attend on level 2 of the Lionel Bowen Building following the end of these proceedings today so as to, in company with the Child Court Experts caring for the children, explain that:
(a)The judge needed to speak to their Mother and their Father about the case today in some detail;
(b)To Y and Z – the new arrangements for the time with their Father, being each Saturday from 9:00AM until 5:00PM unsupervised; and
(c)To W and X – that they can join in with their sisters during the time they spend with the Father if they wish.
15.Each of the Mother and the Father is restrained from discussing these proceedings in the presence or within the hearing of the children W, X, Z, or Y, or any of them.
16.Each of the Mother and the Father is restrained from allowing the children to remain in the presence of or within any of the children’s hearing of any other person discussing these proceedings.
17.Neither parent is to approach level 2 of the Lionel Bowen Building today until the Independent Children’s Lawyer Mr Wilkins returns to level 4 having performed his obligation under order 36 herein, and informs each parent that same has been concluded.
18.By consent, the parties and the Independent Children’s Lawyers may provide to Ms BJ a copy of the Reasons for Judgment published today.
THE COURT NOTES THAT:
19.The first occasion of time between the Father and Y, Z, and W and/or X if the latter two elect to join their sisters, will be 28 May 2022.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 a pseudonym Bergeron & Bergeron (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MORLEY:
INTRODUCTION
These are the Reasons for Judgment that were delivered verbally and ex tempore on 26 May 2022. They have been settled herein in written form. Grammatical errors and accidental errors in reference have been amended for ease of comprehension. Legal citations have been included in full and incorporated into these Reasons.
This is a matter in which I made final orders and published my Reasons for Judgment this morning. Upon that being concluded, oral application was made by Queen’s Counsel for the Respondent Mother Ms Bergeron (‘the Mother’) for a stay of the final orders for a period of six weeks whilst she considers the published Reasons for Judgment and prepares an appeal.
It is inherent in the application that has been made, and the way it has been presented on her behalf by Queen’s Counsel, that it is not the Mother considering whether or not she will appeal; it is a matter of the Mother formulating her appeal having heard the final orders made.
THE LAW
The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘the Rules’) provide in Rule 13.12(2):
13.12 Stay
…
(2) If an appeal has been started, or a party has applied for leave to appeal against an order, any party may apply for an order staying the operation or enforcement of all or part of the order to which the appeal or application relates.
I will refer also to Rule 1.31 of the Rules that provides:
1.31 Court may make orders or dispense with these Rules
(1) The Court may, in the interests of justice, dispense with compliance, or full compliance, with any of these rules at any time.
(2) If, in a proceeding, the Court gives a direction or makes an order that is inconsistent with any of these rules, the direction or order of the Court prevails in that proceeding.
I also refer to Rule 1.32(a) for a particular purpose that arises from one of the authorities considered. Rule 1.32 provides:
1.32 Applications for orders about procedures
A person who wants to start a proceeding, or take a step in a proceeding, may apply to the Court for an order about the procedure to be followed if:
(a) The procedure is not prescribed by the Family Law Act, these rules, or under any other Act, or
(b) the person is in doubt about the procedure.
I suspect, but I need not resolve for the current purposes, that there will be a Rule in the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) that applies Rule 1.32 also to proceedings before this division of the Court, and refers to the Federal Circuit and Family Court of Australia Act 2021 (Cth).
The Court has been referred to the authorities in relation to the stay, and in particular Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106. In that particular authority, of course, well-known provisions starting at paragraph 17, and in particular at paragraph 18, set out the Full Court’s determination of the principles relevant for consideration by the Court in considering whether to grant a stay.
This is an application, and therefore these are proceedings (this being an application before the Court) that are at variance from most of the matters dealt with in stay applications in that an appeal, of course, has not yet been lodged, and there has not been time for consideration by the Mother and her legal advisers of the Reasons for Judgment, and accordingly what all of the appeal points would be.
The Court has also been referred to Cape & Cape [2013] FamCAFC 114, being the Full Court authority coming after Aldridge & Keaton, and the bench consisting of their Honours Justices Finn, Thackray, and Aldridge. I think one would safely say that is a strong bench. The Court has also had the recourse to that authority.
The Court has been referred to EJK & TSL (No. 2) [2006] FamCA 806, another Full Court authority, with the bench consisting of their Honours Justices Coleman, May, and Boland.
The Court has been referred to Tran & Long (No. 2) [2008] FamCAFC 922.
Particular reference has been made on behalf of the Mother to a decision of her Honour Justice Ryan in Sheldon & Weir (No. 4) [2010] FamCA 1214, and I will come back to that in particular in a moment.
Finally, reference has been made to a Full Court decision in Maidment & Insley [2022] FedCFamC1A 48, a decision of their Honours Deputy Chief Justice McClelland and Justices Tree and Gill. That particular judgment was brought to the attention of the parties and the Independent Children’s Lawyer by the Court very soon after the Reasons for Judgment in that decision was published, as it had particular application to a consideration in this matter, given that it had dealt with a circumstance where a sound transcript (and therefore a printed transcript of proceedings) were not available, when a matter goes on appeal and the effect of that on the appeal process.
The first question is whether or not I have jurisdiction in the matter. The process, as everyone knows is, always:
(1)Question 1: does the Court have jurisdiction?
(2)Question 2, does the Court have power?
(3)Question 3, will the Court exercise the power to do what one or other party, or both of them, are asking me to do?
JURISDICTION
I turn to the first question of jurisdiction.
On a simple reading of a Rule 13.12, the Court would seem not to have jurisdiction. When one looks at the relevant sections in the Family Law Act 1975 (Cth) (‘the Act’) dealing with Courts exercising jurisdiction under section 45 of that Act, section 45 deals with stay or transfer of proceedings, it deals with a proceeding in course, where a proceeding has been instituted under the Act it appears to the Court the other proceedings have been so instituted, and so forth.
It does not assist in this matter, nor indeed does the section in the Federal Circuit and Family Court of Australia Act 2021 assist, the relevant section, because it makes itself subservient to the rules of Court, and basically is in the same or similar terms to what is found in the Rules.
Section 38 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) provides:
Stay of proceedings and suspension of orders
(1) If an appeal to the Federal Circuit and Family Court of Australia (Division 1) from another court has been instituted:
(a) the Federal Circuit and Family Court of Australia (Division 1) or a Judge, or a judge of that other court (not being the Federal Circuit and Family Court of Australia (Division 2) or the Magistrates Court of Western Australia), may order, on such conditions (if any) as either court or a judge thinks fit, a stay of all or any proceedings under the judgment appealed from; and
(b) the Federal Circuit and Family Court of Australia (Division 1) or a Judge may, by order, on such conditions (if any) as the Court or Judge thinks fit, suspend the operation of an injunction or other order to which the appeal, in whole or in part, relates.
(2) This section does not affect the operation of any provision made by or under any other Act or by the Rules of Court for or in relation to the stay of proceedings.
I have referred to Rule 13.12 and also the general power of the Court in Rule 1.31 to dispense with compliance with any of the Rules.
If I dispense with the requirements of Rule 13.12 so as to remove the requirement that there be an appeal lodged, or an application for leave to appeal – which does not apply in these circumstances – does that solve the jurisdictional question?
I think on base I would find it is an unsafe method of finding that the Court has the jurisdiction to deal with these particular proceedings.
I do note, however, Rule 1.31(2), which I read before, and I will say again:
(2) If, in a proceeding, the Court gives a direction or makes an order that is inconsistent with any of these Rules, the direction or order of the Court prevails in that proceeding.
I guess that is the little sub-rule making the determinations of the Court superior to the Rules.
Still on jurisdiction, I will turn to the decision of Ryan J in Sheldon & Weir (No. 4). That was a decision of her Honour sitting as a Justice of the Family Court of Australia and I have in particular had regard to paragraph 33 of that decision.
It is a decision with a factual matrix very much like this current matter, where final orders were made, an appeal had not yet been instituted, but an application was made for a stay. It was an appeal dealing (once again, similar to this matter) with circumstances where there was cause for urgency.
Paragraph 33 comes after her Honour had considered matters under the Rules, and whether her Honour could use the Rules in the manner that I have just traversed to deal with the jurisdictional question and then the power question, and so forth.
I note that her Honour there referred for assistance to Rule 1.09 of the then-Family Law Rules 2004 (Cth), which is asserted in the published copies of the compendiums of Acts and Rules to be on all squares with Rule 1.32 of the Rules, but it is not – it is not even slightly on all fours with that.
Without going further into it, I go to paragraph 33, and I should quote that in full. I will start with paragraph 31 of her Honour’s judgment:
[31] In Erinford Properties Limited & Cheshire County Council [1974] Ch 261 Megarry J granted a stay before an appeal was filed. In that case, he recited a long line of authority, which held ‘when there is an appeal about to be prosecuted, the litigation is to be considered as not at an end …That applies … just as much to the case where the action has been dismissed’. The principles enunciated in Erinford Properties Ltd & Cheshire County Council were approved by Toohey J in Paringa Mining & Exploration Co plc v North Flinders Mines Ltd and Others (1988) 81 ALR 501 at 506.
Her Honour goes on:
[33] This line of authority would support the Court concluding that as the time for lodgement of an appeal has not expired and the father has informed the Court it is intention to appeal, there is jurisdiction to determine his stay application. If it was considered dispensation of r 22.11(2) would nonetheless be insufficient, regard could be had to r 1.09 …[1]
[1] Emphasis added.
That is the Rule I found is not on all fours with any Rule in our current Rules. In paragraph 33:
[33] In the alternative, if there is any doubt about the creation of jurisdiction by a non-existent appeal during the appeal period, as an incident of the Court’s inherent jurisdiction, there is power to determine this application. Support for this proposition can be found in De Lewinski v Director General, New South Wales Department of Community Services (1996) FLC 92-678. Before the Court in De Lewinski was an application to stay orders made by the Full Court of this Court in Abduction Convention proceedings. An application for special leave to the High Court had not yet been instituted. Gummow J determined the Full Court erred in refusing a stay, even though the application for special leave to appeal had not been instituted. In his judgment, his Honour pointed out the importance of the court familiar with the matter determining a stay application in a principled manner. This was, as his Honour stated “Important for the administration of justice”. So that it is clear it was accepted that although an application for special leave to appeal to the High Court had not been filed, jurisdiction existed in both the Full Court and the High Court to stay the orders made by the Full Court.
On the basis of:
(1)What I have quoted from her Honour’s decision in Sheldon v Weir (No. 4); and
(2)The common law of a Court’s inherent jurisdiction to deal with its own orders and to see justice done, including an inferior Court of record as is this division,
I consider that the Court does have jurisdiction to deal with the oral application made by the Mother today that the final orders made today be stayed for a period of six weeks.
POWER
Resolving that jurisdictional question, in effect – and without labouring the point – resolves the question of power that can be exercised. Should it be exercised?
HOW WILL THE COURT EXERCISE ITS POWER?
The application is that the orders made today be stayed for a period of six weeks, and I have heard, and take fully into account, the submissions made on behalf of the Mother by Mr Looney of Queen’s Counsel today, by Mr O’Reilly of counsel on behalf of the Father, and by Mr Wilkins, solicitor-advocate being the Independent Children’s Lawyer in the matter.
I have considered the authorities to which I have referred, and inherently, and obviously, having published my Reasons for Judgment in this matter, I have knowledge of this matter that went to final orders today in relation to all of the evidence presented on the final hearing.
There are four children in the Court building at the moment pursuant to an order made by the Court on 19 May 2022 requiring the Mother to bring them to Court today. The Reasons for Judgment having been concluded and the final orders determined, those orders of 19 May 2022 were made in the course of setting up the necessary process for the final orders to go into effect.
CONSIDERATION BY THE COURT
I remain very conscious of a number of things.
Firstly, those children are sitting downstairs in a state of, one would assume I think fairly safely, considerable suspense as to what is going to happen. That is without making a determination as to what causes that suspense and what their own thoughts on that are, but suspense is unavoidable for the children.
I also remain very conscious, particularly as I took steps unusually to bring it to the parties’ attention as soon as I could, of the Full Court’s decision in Maidment & Insley and the effect that that decision can have on the strength of an appeal in this matter by either party.
I am conscious that in considering this stay application, these are not parenting proceedings under Part VII of the Act. Nevertheless, in any proceedings involving children, and of course following what fell from the Full Court in Aldridge & Keaton as their last bullet point in paragraph 18, the best interests of the children the subject of the proceedings must be a significant consideration.
All of the material and the Reasons for Judgment that I published today show that these children (to put it perhaps far too mildly) have had a very difficult time. I am very conscious of what I have determined about the breach in the relationship between the children and their Father in this matter. I am very conscious of what I determined in those Reasons for Judgment about the matters or risk that are asserted by each of the parties, and the findings that I made, some of which were helpfully read on to the record by Mr O’Reilly in making submissions and arguing the case for the Father.
Going through the points in Aldridge & Keaton, so far as we can go through them and give attention to them in circumstances where the parties could barely have considered a handful of paragraphs, as Mr O’Reilly very properly and very quickly did, and could hardly have considered a fraction of a long judgment so as to determine the strength and otherwise of various appeal points. Taking those necessary principles one by one, it is the case that the onus is on the Mother to establish a proper basis for a stay. She need not have special or exceptional circumstances.
The Father is entitled to the fruits of this judgment and he is entitled to presume that the judgment delivered by the Court today is correct. The filing by the Mother of an appeal does not automatically grant a stay, and everyone is very conscious of that.
Bona fides of the Mother
I heard the submissions made on behalf of the Father by Mr O’Reilly in relation to the Mother’s bona fides, but I think I made comments from the Bench, in I hope polite response, that I have seen and heard nothing since 19 May 2022 of this year to indicate a lack of bona fides on the part of either party, and a consideration of what they consider to be in the best interests of the children, vary, as that may, with the determinations I have made in my Reasons for Judgment.
If a stay is granted, it should be on terms fair to all parties, and in considering whether or not to make a stay, I have had to give consideration to if a stay is granted on what terms or conditions that may be made. I have received submissions from the parties in relation to that.
Consideration of whether there is a risk that an appeal may be rendered nugatory if a stay is not granted does not apply in these proceedings if the stay is granted.
If a stay is not granted then today those final orders will go into effect and there will be (once again the word ‘significant’ is almost inadequate) a very significant change in the circumstances of the children, W, X, Y and Z, from what they have known for the last four years. In relation to at least W and X, based on what I found in my Reasons for Judgment and the evidence in the matter, they would be entering a difficult time for a period of time that I am not in a position to guess at, let alone determine. It is beyond matters within the knowledge of the Court at the moment. I have determined that it is a circumstance to go forward in the best interests of the children, but the question is ‘when’.
Preliminary assessment of the strengths of the opposed appeal.
I can address this even though there is the extraordinary circumstances of the notice of appeal not having been filed, by my reference to the decision of Maidment & Insley, and I need not labour that point. But that, on its face, does ground the filing of a Notice of Appeal. Where that goes is a matter for another place, and through wiser heads.
The desirability of limiting the frequency of any change in a children’s living circumstance stands up, pairing itself with the best interests of the children the subject of the proceedings, as significant considerations, as being the very large point for me to consider in these proceedings. The best interests of the children is not the paramount consideration by force of the sections in what is before the Court at the moment, but the best interests of the children must always be a very, very significant consideration and in this matter I would, at the moment, say it is a determining consideration in relation to this application for a time‑limited stay.
Consideration of the time in which an appeal can be heard and whether there are existing satisfactory arrangements that may support the granting of a stay for a short period of time
I do not know what the time for the appeal will be. I do not know whether expedition will be sought from the Full Court in relation to any appeal that goes there, but my consideration of this application for a time-limited stay today is made fully on the basis, as put by Queen’s Counsel for the Mother, that an appeal is going to be lodged, as opposed to a circumstance where lodgement of an appeal is under consideration.
Taking all of that into account, and stressing once again that the circumstances of W, X, Y, and Z today are in circumstances far away from the great preponderance of parenting matters that come to final orders before the Court, of them being in the building, and on the lip of a very significant change in their circumstances.
DETERMINATION
I determine that it is appropriate, in the interests of justice, in the interests of the process of justice in this matter, and in the best interests of the children, to grant a time-limited stay to the mother whilst her appeal is formulated and lodged.
I consider that the stay should be granted as a stay for a period only inside the period of appeal, as opposed to the period of six weeks as sought.
I determine that the short-term stay should be granted.
I determine that the period of the short stay should be four weeks from today, and I consider that that stay should be granted on terms and conditions.
TERMS AND CONDITIONS OF THE STAY
I have received the submissions in relation to some thoughts I expressed about terms and conditions for granting the stay.
There is agreement between the parties that time between the father and Y and Z, which has been proceeding on an alternate weekend basis for a couple of hours for some years now, should move to an unsupervised basis, and that it should be extended in time.
I did not seek submissions in relation to overnight time, because that was not a thought that I was expressing, and it is not an order that I would make, but I do determine that the time to be spent between the Father and Y and Z should be from 9:00AM until 5:00PM on a weekend day.
I have received submissions on behalf of both the Mother and the Father and from the Independent Children’s Lawyer about the frequency of that, and I consider that in the circumstances of the final orders that I made today, based upon the Reasons for Judgment I have published today, that such time should be on a weekly basis with the Father.
I consider, based upon my knowledge of the matter as reflected in the Reasons for Judgment I published today, and in that I can mention the antecedents of the Mother from the United Kingdom and the family support available to her (and that is not to be taken, and is not meant, with even a scintilla of inference that there would be misconduct or bad intentions on the part of any of the Mother or any member of her family), I consider that it is appropriate to make a further Airport Watchlist order covering the four children as a condition of the stay.
In relation to further terms I consider it is appropriate to make an order restraining both parties from discussing these proceedings with the children during the period of the stay.
In contemplation of making that a condition, I consider it is necessary to make an order, or a condition of the stay by way of an order, that the Independent Children’s Lawyer, with the assistance of the Court Child Experts, give an explanation to the children waiting downstairs in Court Child Services that the judge needed to speak to both their Mother and their Father at the Court today.
It is necessary that they have some explanation of what is going forward: the judge needed to speak with their mother and their father.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Morley. Associate:
Dated: 6 June 2022
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