Bergmann & Bergmann

Case [2022] FedCFamC1A 38

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Bergmann & Bergmann [2022] FedCFamC1A 38

Appeal from: Bergmann & Bergmann [2021] FamCA 599
Appeal number(s): EAA 92 of 2021
File number(s): SYC 7892 of 2015
Judgment of: AUSTIN, TREE & STRUM JJ
Date of judgment: 21 March 2022
Catchwords: FAMILY LAW – APPEAL – PARENTING – RELOCATION – Where the mother appeals from orders providing for the children to live with the father in Australia, declaring Australia their habitual place of residence, and providing for them to spend time with the mother – Whether there was a denial of procedural fairness – Whether the wrong legal test was applied – Whether there was a failure to consider mandatory considerations – Adequacy of reasons – Mistaken findings – Where the primary judge fell into error by finding, contrary to the available evidence, that the father could not travel to France – Where the error is material and critically fed into the exercise of discretion, causing it to miscarry – Appeal allowed – Proceedings remitted for re-hearing – Costs ordered in a fixed sum.
Legislation:

Family Law Act 1975 (Cth) Pt VII, ss 60CC, 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17
Cases cited:

Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7

Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8

Denham & Newsham (2021) FLC 94-043; [2021] FamCAFC 141

DL v The Queen (2018) 266 CLR 1; [2018] HCA 26

Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54

House v The King (1936) 55 CLR 499; [1936] HCA 40

Kioa v West (1985) 159 CLR 550; [1985] HCA 81

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 388 ALR 257; [2021] HCA 6

National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296; [1984] HCA 29

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

RCB v The Honourable Justice Forrest (2012) 247 CLR 304; [2012] HCA 47

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6

Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88

Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127; [2004] NSWCA 174
Number of paragraphs: 85
Date of hearing: 2 March 2022
Place: Sydney (via video link), delivered in Newcastle
Counsel for the Appellant: Mr McHugh SC with Ms Clifford
Solicitor for the Appellant: Barkus Doolan Family Lawyers
Counsel for the Respondent: Mr Walker SC with Mr Othen
Solicitor for the Respondent: Karras Partners
Counsel for the Independent…

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AGLC
Bergmann & Bergmann [2022] FedCFamC1A 38
Case
[2022] FedCFamC1A 38
Decision Date

CaseChat Overview and Summary

The appeal in Bergmann & Bergmann concerns a dispute between parents over the relocation of their two children from Australia to France. The mother, Ms Bergmann, appealed against orders made by the primary judge, which declared Australia the children's habitual place of residence and provided for them to spend time with her in France. The appeal was opposed by the father and the Independent Children's Lawyer, but ultimately allowed on the basis that the primary judge had erred in making a finding that was contrary to the available evidence. This error was considered material and critically affected the exercise of discretion, leading to a miscarriage of the decision-making process.

The legal issues in this case primarily revolved around whether the primary judge had applied the correct legal test, whether there had been a failure to consider mandatory considerations, and whether there had been a denial of procedural fairness. The court found that there was no legal error in the primary judge's approach, and that the uncertainties attending the children's future under either proposal was considered and proved to be influential but not dispositive in isolation from all other mandatory considerations. However, the appeal was allowed on the ground that the primary judge had made a critical error of fact in finding that the father could not travel to France, which miscarried the exercise of discretion.

The court found that the error was material and critically affected the exercise of discretion, and as such, the appeal was allowed. The proceedings were remitted to the Federal Circuit and Family Court of Australia (Division 1) for re-hearing by a different judge. Orders 2, 3, 4, 5, 6, 7, 8, 9, 10 and 14 made by the primary judge were set aside as and from the date upon which the proceedings were next listed before a judge exercising original jurisdiction under Pt VII of the Family Law Act 1975 (Cth). The father was ordered to pay the mother's costs of and incidental to the appeal in the fixed sum of $20,000, while both parties were ordered to pay the Independent Children's Lawyer's costs of and incidental to the appeal in the fixed sum of $3,960, to be shared equally between them.

Orders

Orders of the court

EAA 92 of 2021

SYC 7892 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS BERGMANN

Appellant

AND:

MR BERGMANN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN, TREE & STRUM JJ

DATE OF ORDER:

21 MARCH 2022

THE COURT ORDERS THAT:

1. The appeal is allowed.

2. The proceedings are remitted to the Federal Circuit and Family Court of Australia (Division 1) for re-hearing by a judge other than the primary judge.

3. Orders 2, 3, 4, 5, 6, 7, 8, 9, 10 and 14 made by the primary judge on 12 August 2021 are set aside as and from the date upon which the proceedings are next listed before a judge exercising original jurisdiction under Pt VII of the Family Law Act 1975 (Cth).

4. The respondent shall pay the appellant’s costs of and incidental to the appeal in the fixed sum of $20,000.

5. The appellant and the respondent shall each pay the sum of $1,980 in part satisfaction of the Independent Children’s Lawyer’s costs of and incidental to the appeal, fixed in the sum of $3,960.

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

The mother’s appeal was opposed by both the father and the ICL but, for the reasons which follow, the appeal must be allowed on one ground.BACKGROUND The parties were both born overseas. They met in City DD and commenced cohabitation in 2006, moved to live in Australia shortly afterwards and, in June 2007, settled in Sydney. The elder child was born in 2008 and the younger child was born in 2011. They were aged 12 and 10 years at the time the orders were pronounced. When the children were young, the mother regularly travelled overseas for work. At those times, the father managed the children’s care with the help of the maternal grandmother and a nanny. The parties separated in December 2015 and, although they continued to occupy the same Australian home, over ensuing months, the mother’s principal place of residence gradually became City DD. The father commenced proceedings for parenting orders in December 2015, shortly after the marital separation. By May 2016, the mother raised with the father the prospect of the children moving to live with her in City DD, but he rejected the idea (at [43], [112] and [115]). Interim orders were made in May 2016 with the parties’ consent, providing for them to have equal shared parental responsibility, for them to share the children’s care, and restraining them from removing the children from Australia other than for designated holidays. More interim orders were made in October 2016 with the parties’ consent, providing for the children to live with them for equal time, with each week broken into equal increments (at [49]). By December 2017, the parties agreed to vary the existing interim orders such that the children would live with them for equal time in weekly rotations (at [56]). During 2018, it was the mother’s practice to often travel overseas for work in the weeks when the children lived with the father (at [40], [57], [275] and [343]). She felt isolated living in Australia and closed the Sydney office in which she had been working (at [62], [64] and [359]). By May 2019, the mother confirmed she would live permanently in City B with her new partner and she wanted the children to live with her there (at [61]). From 2020, she no longer had any projects in Sydney and worked exclusively in Europe. During 2020, the interaction between the mother and the children was frustrated by the COVID-19 pandemic because the mother was in France for months at a time and international travel was difficult (at [88]–[102]). As a consequence, more interim orders were made in February 2021 to adjust arrangements for the children’s care, depending upon either the mother’s presence in or absence from Australia. The trial proceeded in April 2021. It was common ground between the parties that they should have equal shared parental responsibility for the children and, regardless of with whom the children would primarily live, the mother intended to live in City B and the father intended to remain living in Sydney.

Evidence

Evidence Before The Court

In the ultimately dispositive paragraphs of the reasons for judgment (at [895]–[897]), the mistake of fact critically fed into the exercise of discretion, causing it to miscarry. The primary judge traded-off, on the one hand, the mistaken finding about the father’s practical inability to travel and the consequential deleterious effect upon the children of their separation from him and, on the other hand, the children’s closer emotional attachment to the mother and her enhanced ability to help the children adapt to changes. This ground succeeds.Ground 3 – result against the weight of evidence This ground contends the orders made by the primary judge were “against the weight of evidence”, thereby causing the appealed orders to be “plainly wrong”. Since the mother has demonstrated a frank error of material fact under Ground 5, which requires remitter of the proceedings for re-hearing, it becomes unnecessary to consider this ground which contends for only an inference of error.DISPOSITION The appeal succeeds for the appealable error demonstrated under Ground 5. Absent an agreement between the parties and the ICL about the facts upon which this Court could re-exercise discretion, the prospect of which agreement was mooted but never consummated, it was mutually accepted that remitter of the proceedings for re-hearing by another judge was the only viable option. The specific orders from which the mother appealed (being Orders 2–10 inclusive and 14) must be set aside, but it would be premature to set them aside immediately and thereby create a vacuum concerning the children’s residence and the arrangements for them to spend time and communicate with the non-residential parent. The vitiated orders should be set aside from the time at which the proceedings are next listed before a judge of the Federal Circuit and Family Court of Australia (Division 1) exercising original jurisdiction under the Act, when there will be an opportunity to consider fresh interim orders pending the re-hearing. Many other orders were not the subject of the appeal and need not be set aside in the exercise of dispositive power (s 36(4) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)). The parties agreed they should pay, in equal shares, the very modest costs of the ICL, regardless of the outcome of the appeal. In the event of the appeal being allowed, the mother sought an order compelling the father to pay her party/party costs in the sum of $48,169.58. He had no complaint about the manner in which her costs were calculated, but resisted any order being made on the basis that there should be no departure from the ordinary rule that the parties bear his and her own costs of the appeal (s 117(1)) and it was not unreasonable for him to have resisted the appeal. The father’s submissions are rejected. The appeal succeeded for an error of fact, which he staunchly resisted and could easily have conceded. However, since Ground 5 was but one of several grounds, with the remainder being vainly pursued and understandably defended, we are persuaded the mother should only have a portion of her costs. By resort to r 12.17(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the mother’s costs are fixed in the sum of $20,000.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

So analysed, there was no legal error in the primary judge’s approach. The wrong test was not applied. The uncertainties attending the children’s future under either proposal was a mandatory consideration, so it was considered and it duly proved to be influential, but it was not dispositive in isolation from all other mandatory considerations. It properly took its place among others. This ground fails.Ground 2 – failure to consider mandatory considerations This ground contends the primary judge fell into legal error by failing to properly consider “mandatory statutory considerations”. Although the complaint implies plurality in the disregarded considerations, during the hearing it was clarified to be confined to the failure to consider a single factor, namely s 60CC(3)(d) of the Act. In support of this ground, the mother submitted in her Summary of Argument:11.… At trial each party proposed a substantial change to the children’s living arrangements.12.Given the parties’ proposals, her Honour needed to consider the provisions of section 60CC(3)(d) in the context of this case. She failed to do so adequately (or at all). The section is concerned with the effect of change on the child, not with the occurrence of change per se. In particular, the change to be considered will include the effect of separation from either parent.…14.Notwithstanding lengthy reasons her Honour’s judgment does not examine either party’s proposal through the lens of section 60CC(3)(d) so as to make a finding about the likely effect of the children’s separation from the mother (under the father’s proposal) or conversely the likely effect of the children’s separation from the father (under the mother’s proposal).15.It is not the change occasioned by the orders sought which is the matter for consideration but the likely impact of that change on the subject children. The primary [j]udge stops the analysis at the point of determining that the mother’s proposal would constitute a change.(Underline emphasis in original) (Bold emphasis added) Shortly stated, we reject those submissions. For the reasons we gave above, when dealing with Ground 1, her Honour expressly considered the evidence which engaged s 60CC(3)(d) of the Act. The prospective effects upon the children of the parties’ competing residential proposals were directly addressed at several points in the reasons for judgment (at [293], [404], [408], [508], [648], [652], [687], [702], [714], [785], [791], [831], [862]–[865], [878], [885] and [888]). As argued, Grounds 1 and 2 appeared to evolve into a contention that the primary judge failed to make any finding about the probable, as distinct from possible, adverse effects upon the children of either residential proposal. Given the single expert was only willing to speak in terms of potentialities and resisted making any firm predictions, there was a scant evidentiary basis for the primary judge to do anything other than observe the possible deleterious consequences of each option.