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,…

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 (No 2)

Details

AGLC: Bergeron & Bergeron (No 2) [2022] FedCFamC2F 722
Case: [2022] FedCFamC2F 722
Decision Date

CaseChat Overview and Summary

In Bergeron & Bergeron (No 2), the Federal Circuit and Family Court of Australia (Division 2) was asked to decide whether to grant a time-limited stay of final orders that had just been made in family law proceedings concerning four children. The Court was asked to decide if it had jurisdiction and power to grant a stay, and if it should exercise that power. The applicant, the mother, sought a stay of the final orders for six weeks while she prepared to appeal the Court's decision. The Court found that it had jurisdiction to hear the application for a stay, and that it had the power to grant a stay even though an appeal had not yet been lodged. The Court also determined that it should exercise its power to grant a stay in the interests of justice and in the best interests of the children. The Court granted a stay for a period of four weeks, on certain terms and conditions. These included that the children spend time with their father on a weekly basis, and that both parents were restrained from discussing the proceedings with the children during the period of the stay. The Court also made an order that the Independent Children's Lawyer explain to the children what was going forward, and that the names of the children be placed on the Airport Watchlist.

Orders