BIONDI & KOEN - [2020] FamCA 201

FAMILY COURT OF AUSTRALIA

BIONDI & KOEN

[2020] FamCA 201

FAMILY LAW – PARENTING – a child of three years old – interim order providing for frequent face to face time and introduction of overnight time where overnight time was opposed by the mother – where mother seeks to discharge overnight time order in favour of time taking place under much restricted conditions.

FAMILY LAW – PARENTING – where parents have no capacity to co-parent – where mother is anxious about vulnerability of herself and child to contracting pandemic illness – where mother is a particularly isolated and vulnerable position.

FAMILY LAW – PARENTING – where mother has a genuine but not reasonable belief that child is at risk in the care of the father – consideration of the impact of the mother’s genuine anxiety on the parenting capacity – best interests considerations.

FAMILY LAW – PRACTICE AND PROCEDURE – where matter listed urgently in line with Chief Justice’s statement on Parenting Orders and COVID-19.

FAMILY LAW – PRACTICE AND PROCEDURE – where proceedings were conducted in closed court having regard to need to avoid hearing being disrupted – hearing including submissions an cross examination conducted by audio visual link

Family Law Rules 2014 (Cth)
Statement from the Honourable William Alstergren Chief Justice – Parenting Orders and COVID-19
Directions from Deputy Chief Health Officer (Communicable Disease) made in accordance with emergency powers arising from declared state of Emergency “Stay at Home Directions” under the Public Health and Wellbeing Act 2008 (Vic)

B & B (1993) FLC 92-357
Russell & Close (Appeal SA45 of 1992, unreported judgment delivered 25 June 1993)

APPLICANT:

Ms Biondi

RESPONDENT:

Mr Koen

INDEPENDENT CHILDREN’S LAWYER:

Ms Hams

FILE NUMBER:

MLC

2872

2017

DATE DELIVERED:

1 April 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

27 March & 1 April 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Whitchurch

SOLICITOR FOR THE APPLICANT:

Macgregor Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Hoult

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

Paragraphs 3(d) to (f) of the Order made on 23 December 2019 be discharged.
Until further order, the father spend time with X born … 2016 (“the child”) as follows:
(a)       On Thursday 2 April 2020 from 10.00 am to 6.00 pm;
(b)       Commencing 7 April 2020, overnight each Wednesday from 10 a.m. on Wednesday to 10.00 a.m. on Thursday;
(c)       On Monday from 10.00 a.m. to 6.00pm during which time the father will ensure that X is fed dinner;
(d)       As may otherwise be agreed between the parties and confirmed in writing.
Paragraphs 6(a) and (b) of the Order made on 23 December 2019 continue in full force and effect.
By way of further facilitation of time spent, the father pay or cause to be paid:
(a) A further $30 per week so that the periodic payments to the mother by the father by…

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 BIONDI & KOEN

Details

AGLC: BIONDI & KOEN [2020] FamCA 201
Case: [2020] FamCA 201
Decision Date: 1 April 2020

CaseChat Overview and Summary

In the matter of *Biondi & Koen*, Bennett J of the Family Court of Australia considered an application by the mother to discharge an interim order for overnight time between the father and their three-year-old child. The mother sought to restrict the child's time with the father to much more limited conditions, citing her anxiety about the vulnerability of herself and the child to contracting a pandemic illness. The father sought to maintain the existing interim order for frequent face-to-face time, including overnight stays.

The central legal issues before the court were whether the existing interim parenting orders, which included overnight time, should be discharged or varied, and what arrangements would be in the best interests of the child. The court was required to consider the impact of the mother's genuine, albeit not objectively reasonable, belief that the child was at risk in the father's care, and how her anxiety affected her parenting capacity. The urgency of the matter was noted, aligning with the Chief Justice's statement on Parenting Orders and COVID-19, and the proceedings were conducted in closed court with evidence and submissions presented via audio-visual link.

Bennett J reasoned that while the mother's anxiety was genuine, it did not render the existing order unreasonable in the context of the child's best interests. The court acknowledged the parents' limited capacity to co-parent and the mother's isolated and vulnerable position. However, the court ultimately determined that discharging the overnight time order entirely would not be in the child's best interests. Instead, the court made specific orders for the father to spend time with the child, including overnight stays on Wednesdays, and also ordered increased financial support from the father to the mother to cover medical and psychological expenses, and directed the mother to seek a mental health plan. The court also made detailed provisions for communication between the parents and the child via Skype, with specific instructions regarding recording and availability.

Orders

Orders of the court

Paragraphs 3(d) to (f) of the Order made on 23 December 2019 be discharged.

Until further order, the father spend time with X born … 2016 (“the child”) as follows:

(a) On Thursday 2 April 2020 from 10.00 am to 6.00 pm;

(b) Commencing 7 April 2020, overnight each Wednesday from 10 a.m. on Wednesday to 10.00 a.m. on Thursday;

(d) As may otherwise be agreed between the parties and confirmed in writing.

Paragraphs 6(a) and (b) of the Order made on 23 December 2019 continue in full force and effect.

By way of further facilitation of time spent, the father pay or cause to be paid:

(a) A further $30 per week so that the periodic payments to the mother by the father by way of her maintenance and child support total $575 per week;

(b) The mother’s reasonable medical expenses for her attendance at a general practitioner of her choice;

The mother attend her general practitioner as soon as possible to request a mental health plan for her psychological treatment and support.

Until further order, the mother communicate by Skype with the child at 5 p.m. on the day of any overnight time pursuant to paragraph 2(b) of this Order for approximately 5 minutes and the father be responsible for recording the communication in circumstances where the recording will not come to the attention of the child. For the purpose of this Skype call, the father place the call to the mother’s mobile telephone and the father ensure that his mobile telephone is charged and within mobile telephone range.

Until further order the father communicate with the child X by Skype for up to 30 minutes each Tuesday and Saturday between 5 p.m. and 5.30 p.m. For this purpose the father place the Skype calls to the mother’s mobile telephone and the mother ensure that the child is available to speak with the father and that her mobile telephone is switched on, charged and within mobile telephone range. The mother may be present during the Skype calls and either parent may record this communication providing that the fact of recording is not known to the child.

The mother continue to be responsible for delivery of the child to and collection of the child from the father’s residence for the purpose of face to face time spent.

I reserve to the parties liberty to apply in relation to implementation of this Order and I direct that a copy of any documents sought to be filed be sent by email to my Associate – … and abide her directions as to filing.

10.

Otherwise this matter remain listed to a date to be fixed for final judgment.

11.

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.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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.