FAMILY COURT OF AUSTRALIA
Biondi & Koen [2021] FamCA 230
File number(s): MLC 2782 of 2017 Judgment of: BENNETT J Date of judgment: 6 April 2021 Catchwords: FAMILY LAW – COSTS – Application of security for costs by mother on father’s application to re-open evidence in parenting/relocation proceedings after delivery of draft reasons for decision but before orders are entered – where there is no financial proceeding – where power to order costs is s 117 of the Family Law Act 1975.
FAMILY LAW – PRACTICE AND PROCEDURE – where draft reasons and draft order published to parties to permit counsel to draw to the Court’s attention any typographical corrections, errors and other obvious mistakes – Allowing a party to raise an omission or misunderstanding of a submission with the other side and then with the Court – where publication of reasons and order in draft form is not an opportunity to reargue the case or raise new issues.
FAMILY LAW – COSTS – Matters to be taken into account into account in parenting proceedings – where r.19.05 of the Family Law Rules 2004 may inform the exercise of the court’s discretion to make an order for security for costs – where security for costs is ordered in the sum of $10,000.
Legislation: Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Cases cited: H&T (Judicial Change of Mind) [2018] EWHC 3692 (Fam)
Re L and B (Children) [2013] UKSC 8
Salvage & Fosse [2020] FamCAFC 144
Number of paragraphs: 49 Date of hearing: 6 April 2021 Place: Melbourne Counsel for the Applicant: In person Counsel for the Respondent: Ms Stoikovska SC Solicitor for the Respondent: Lander & Rogers Counsel for the Independent Children's Lawyer: Mr Eidelson Solicitor for the Independent Children's Lawyer: Southern Family Law ORDERS
MLC 2782 of 2017 BETWEEN: MS BIONDI
Applicant
AND: MR KOEN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
6 APRIL 2021
THE COURT ORDERS THAT:
1.The husband’s Application in a Case filed 22 March 2021 and the mother’s Response thereto filed 31 March 2021 be mentioned on 22 April 2021 at 9.00 am (“the mention”). At the mention, the mother specify whether she proposes to rely on evidence of an alternative expert immunologist, the evidence of a yet to be appointed single expert immunologist and/or will cross-examine the father’s expert immunologist.
2.The father pay the sum of $10,000 into the Trust Account of his solicitors for payment out of the mother’s reasonable legal costs and disbursements associated with the father’s application to adduce further evidence in this parenting proceeding and matters relevant if further evidence is adduced.
3.There be leave to the father to make an oral application for injunctive relief in relation to the attendance of the child X born in 2016 at kindergarten.
4.Until further order, the mother and the father forthwith do all acts and things necessary to facilitate X’s attendance at kindergarten as enrolled, being R School in Suburb Q, including but…
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- AGLC
- Biondi & Koen [2021] FamCA 230
- Case
- [2021] FamCA 230
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether to grant the father's application to adduce further evidence, and in relation to the mother's application for security for costs, the court needed to consider the relevant provisions of the *Family Law Act 1975* and the *Family Law Rules 2004*, specifically rule 19.05, which informs the exercise of discretion regarding security for costs in parenting proceedings. The court also had to consider the purpose of publishing draft reasons and orders, and whether the father's application fell within the permissible scope of such a process.
Bennett J reasoned that the publication of draft reasons and orders is intended to allow parties to identify typographical errors, minor mistakes, or obvious errors, and not to re-argue the case or introduce new issues. The father's application to re-open evidence was therefore considered an attempt to re-argue the case, which is not permitted at this stage. Regarding the security for costs, the court found that it had the power to order security under section 117 of the *Family Law Act 1975*, and that rule 19.05 of the *Family Law Rules 2004* could inform the exercise of this discretion.
The court ordered that the father pay $10,000 into the trust account of his solicitors as security for the mother's reasonable legal costs and disbursements associated with the father's application to adduce further evidence. The court also made orders regarding the mention of the father's application and the mother's response, and granted leave for the father to make an oral application for injunctive relief concerning the child's attendance at kindergarten. Further orders were made concerning the child's attendance at kindergarten and the facilitation of vaccinations, as well as provisions for changeovers and the issuance of subpoenas.
Orders
Orders of the court
MLC 2782 of 2017
BETWEEN:
MS BIONDI
Applicant
AND:
MR KOEN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
6 APRIL 2021
THE COURT ORDERS THAT:
1. The husband’s Application in a Case filed 22 March 2021 and the mother’s Response thereto filed 31 March 2021 be mentioned on 22 April 2021 at 9.00 am (“the mention”). At the mention, the mother specify whether she proposes to rely on evidence of an alternative expert immunologist, the evidence of a yet to be appointed single expert immunologist and/or will cross-examine the father’s expert immunologist.
2. The father pay the sum of $10,000 into the Trust Account of his solicitors for payment out of the mother’s reasonable legal costs and disbursements associated with the father’s application to adduce further evidence in this parenting proceeding and matters relevant if further evidence is adduced.
3. There be leave to the father to make an oral application for injunctive relief in relation to the attendance of the child X born in 2016 at kindergarten.
4. Until further order, the mother and the father forthwith do all acts and things necessary to facilitate X’s attendance at kindergarten as enrolled, being R School in Suburb Q, including but not limited to:
(a) Immediately withdrawing the mother’s notification to the kindergarten that X will not attend;
(b) Ensuring that X is appropriately vaccinated and immunised in accordance with the requirements of the kindergarten and for X to have unrestricted access to activities.
5. There be leave to the parties to issue an unlimited number of subpoenas to produce documents in anticipation of the mention.
6. Until further order, the mother and the father attend changeover for time spent personally and any person accompanying the mother and the father remain in a motor vehicle or away from the changeover point.
7. That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
8. My reasons for decision this day be transcribed and, when settled, placed on the Court file and a copy provided to the parties.
AND IT IS NOTED:
A. That the father consents to paragraph 6 of this Order without admitting the necessity therefore.
B. If the mother and / or the father seek the appointment of a single expert immunologist, they settle on the identity of that witness or a list of appropriately qualified persons who could be appointed, the cost and the availability of the experts and do so prior to the mention.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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