Emmet & Bernardo - [2024] FedCFamC2F 114

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Emmet & Bernardo [2024] FedCFamC2F 114

File number(s): PAC 4986 of 2019

Judgment of: JUDGE STREET

Date of judgment: 7 February 2024

Catchwords: FAMILY LAW – PARENTING –– school arrangements for the child – competing parenting proposals – parental arrangements – where the mother is due for sentencing

Legislation: Family Law Act 1975 (Cth)

Cases cited:
Goode & Goode [2006] FamCA 1346

Metrellis & Chase [2023] FedCFamC2F 1241

Division: Division 2 Family Law

Number of paragraphs: 16

Date of hearing: 15 December 2023

Place: Sydney

Solicitor for Applicant: Mr A Jones of Adam Jones Solicitor

Solicitor for Respondent: Ms A Diab of King & York Lawyers

Independent Children’s Lawyer: Ms S Bevan of Sarah Bevan Family Lawyers

ORDERS

PAC 4986 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR EMMET

Applicant

AND:
MS BERNARDO

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE STREET

DATE OF ORDER:

15 DECEMBER 2023

THE COURT ORDERS THAT:
1.The child, X (“the child”), born in 2019, shall attend upon the school chosen by the mother, which is B School, C Street, Suburb D.
2.The matter stood over for directions commencing at 9:30AM on 7 February 2024 via video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
3.Leave is granted to the parties, including the ICL, to provide consent orders to be made in chambers, if appropriate.
4.The Court reserves its written reasons.

THE COURT NOTES THAT:
A.The respondent’s sentencing is intended to take place on 1 February 2024 and if there is an actual custodial sentence, the Court understands that the child will be looked after by 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).
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
RESERVED REASONS FOR JUDGMENT
JUDGE STREET

These are parenting proceedings that were commenced on 11 October 2019 in relation to the child, X (“the child”), born in 2019. The matter has been before the Court on a number of occasions in circumstances where there have been outstanding anticipated steps taken in respect of criminal proceedings for the sentencing of the respondent mother. There has been agreement informally by the parties that if a custodial sentence is…

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 Emmet & Bernardo

Details

AGLC: Emmet & Bernardo [2024] FedCFamC2F 114
Case: [2024] FedCFamC2F 114
Decision Date: 7 February 2024

CaseChat Overview and Summary

The matter between Mr. Emmet and Ms. Bernardo came before the Federal Circuit and Family Court of Australia, Division 2. The central issue in dispute was the arrangement for the schooling of their child, X, born in 2019. The mother, Ms. Bernardo, had chosen B School, located on C Street, Suburb D, while the father, Mr. Emmet, had proposed an alternative school. This disagreement necessitated judicial intervention to determine the most suitable educational environment for the child.

The court was tasked with deciding which of the proposed schools would be most beneficial for the child, considering the various factors outlined in the Family Law Act 1975. The court had to weigh the mother’s preference against the father’s alternative, considering the implications of each option on the child’s welfare. Additionally, the court had to take into account the impending sentencing of Ms. Bernardo, scheduled for 1 February 2024, and the potential impact of a custodial sentence on the child's care arrangements.

In its decision, the court determined that the child, X, would attend the school chosen by the mother, B School. The court recognised the importance of stability in the child's education, especially given the uncertainty surrounding Ms. Bernardo's impending sentencing. The court also noted that if Ms. Bernardo received an actual custodial sentence, the child would be in the care of the father. The matter was stood over for directions, to be held on 7 February 2024, via video and/or audio-link, to allow for further consideration of the parenting arrangements. The court granted leave to the parties and the Independent Children's Lawyer to provide consent orders if appropriate and reserved its written reasons for a later date.

Orders

Orders of the court

PAC 4986 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR EMMET

Applicant

AND:

MS BERNARDO

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE STREET

DATE OF ORDER:

15 DECEMBER 2023

THE COURT ORDERS THAT:

1. The child, X (“the child”), born in 2019, shall attend upon the school chosen by the mother, which is B School, C Street, Suburb D.

2. The matter stood over for directions commencing at 9:30AM on 7 February 2024 via video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).

3. Leave is granted to the parties, including the ICL, to provide consent orders to be made in chambers, if appropriate.

4. The Court reserves its written reasons.

THE COURT NOTES THAT:

A. The respondent’s sentencing is intended to take place on 1 February 2024 and if there is an actual custodial sentence, the Court understands that the child will be looked after by 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).

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.

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.

File number(s):	PAC 4986 of 2019
Judgment of:	JUDGE STREET
Date of judgment:	7 February 2024
Catchwords:	FAMILY LAW – PARENTING –– school arrangements for the child – competing parenting proposals – parental arrangements – where the mother is due for sentencing
Legislation:	Family Law Act 1975 (Cth)
Cases cited:	Goode & Goode [2006] FamCA 1346 Metrellis & Chase [2023] FedCFamC2F 1241
Division:	Division 2 Family Law
Number of paragraphs:	16
Date of hearing:	15 December 2023
Place:	Sydney
Solicitor for Applicant:	Mr A Jones of Adam Jones Solicitor
Solicitor for Respondent:	Ms A Diab of King & York Lawyers
Independent Children’s Lawyer:	Ms S Bevan of Sarah Bevan Family Lawyers

PAC 4986 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR EMMET Applicant
AND:	MS BERNARDO Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	15 DECEMBER 2023