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 of 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

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

2. 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.

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

4. 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;

   (c)       The mother’s out of pocket expenses to attend regularly on her psychologist, Ms E. 

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

6. 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.

7. 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.

8. 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.

9. 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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Biondi & Koen has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2872 of 2017

Ms Biondi

Applicant

And

Mr Koen

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. This is an interim application to suspend the introduction of overnight time between X, who is three years old, and the father.  The mother, who is the primary carer, is anxious and the parents have no ability to co-parent.  In December 2019, there was a five day parenting hearing before me and my decision is reserved.  As a result, the mother may be permitted to relocate to Brazil once the disruption brought about by COVID-19 abates.  If X is taken to Brazil, there can be no guarantee that the father will be able to see X again if, as he says, the Brazil courts are unlikely to enforce a parenting arrangement set by this court or make any satisfactory and enforceable arrangement of its own.  Therefore, cancelling the introduction of overnight time now cannot be ameliorated by any legitimate notion of making up for lost ‘time’ subsequently.  The meaningfulness and benefits of X’s relationship with the father going forward may depend, in no small part, on the strength of the attachment that she forms with her father in the weeks and months before her relocation to Brazil, if such relocation is permitted.  That was the basis on which overnight time was ordered to be introduced.

2. This case fits the general scenario discussed in our Chief Justice’s Statement on Parenting Orders and COVID-19 dated 26 March 2020. [1]  The Chief’s statement provides guidance on the listing of matters such as this case.  It is not legal principle.  It includes the following:

   Parents are naturally deeply concerned about the safety of their children and how the COVID-19 virus will affect their lives. Part of that concern in family law proceedings can extend to a parent’s or carer’s ability to comply with parenting orders and what should be properly expected of them by the Courts in these unprecedented times.

   The purpose of this statement is to clarify that the Courts remain open to assist parties, and to provide parents with some general guidance. However, it is understood that every family’s circumstances are different.

   1. It is imperative that parents and carers act in the best interests of their children. This includes ensuring their children’s safety and wellbeing. Whilst the Courts make orders that are determined to be in the best interests of a child, caring for and determining the practical day-to-day best interests of a child is primarily the responsibility of parents and carers.

   2. Consistent with their responsibilities to act in the children’s best interests, parents and carers are expected to comply with Court orders in relation to parenting arrangements. This includes facilitating time being spent by the children with each parent or carer pursuant to parenting orders.

   […]

   9. If the parties are unable to agree to vary the arrangement, or if it is unsafe to do so, and one or both parents continue to have real concerns, the parties are at liberty to approach the Court electronically and seek a variation of the orders.

   10. Where there is no agreement parents should keep the children safe until the dispute can be resolved. Also during this period of dispute, parents should ensure that each parent or carer continues to have some contact with the children consistent with the parenting arrangements such as by videoconferencing, social media, or if that is not possible, by telephone.

   [1] Family Court of Australia, Statement from the Honourable William Alstergren Chief Justice – Parenting Orders and COVID-19,

3. On 26 March 2020, my Associate was contacted by Counsel for the father and informed that issues had arisen in the parenting case which required that the matter be listed for mention at the Court’s earliest convenience. It was listed on 27 March 2020.

4. The matter proceeded by audio visual link between the Court and counsel for the mother, Mr Whitchurch, the counsel for the father, Mr Hoult, and counsel for the Independent Children’s Lawyer, Mr Eideslon.  The father and mother were also linked in audio visually.

5. The Court was closed.  I was satisfied that it was in the interests of justice to ensure that the proceedings be determined between all parties without risk of disruption by some unauthorised person entering the court room and thereby activating the ninety minute limit on court hearing time prescribed by the Face to Face in Court Protocol[2] issued by the family courts as part of the response to contain the spread of COVID-19.

   [2] Family Court of Australia, Notice to the Profession – COVID-19 Measures and Listing Arrangements,

6. I granted leave to the applicant mother to make an oral application to vary the spend time arrangements for X.  I excused all parties from compliance with the Family Law Rules 2014 as to the filing of applications, responses and affidavit evidence in writing. The matter proceeded by way of submissions and some oral evidence and cross examination of the father.

7. There was no medical evidence adduced by a party, the Independent Children’s Lawyer or the Court of its own volition.

Applications

1. The mother seeks to suspend operation of current parenting orders which are those made on 23 December 2019. In particular, paragraph 3(d) of that Order,  which provides that pending delivery of my reserved judgment in the relocation case, which I heard late last year, some overnight time be introduced between the father and  X. Paragraphs 3(d), (e) and (f) of the Order made 23 December 2019 provides that the father have time with X:

   (d)      From 23 March 2020 until 27 April 2020:-

   (i)From 10 a.m. on Wednesday 25 March, 8 April and 22 April until 10.00 a.m. the following day;

   (ii)      From 10 a.m. to 6 p.m. on:

   1.Wednesday 1 April;

   2.Thursday 2 April;

   3.       Wednesday 15 April;

   4.       Thursday 16 April;

   5.       Saturday -

   during which time the father ensure that X is   fed dinner, bathed and changed into her pyjamas;

   (e)From 27 April 2020 from 10 a.m. to 6 p.m. during which time the father ensure that X is fed dinner, bathed and changed into her pyjamas;

   (f)From 27 April 2020, the father communicate with the X by Skype for 5 to 10 minutes each Monday between 6 p.m. and 6.30p.m. and for this purpose the father place the Skype calls to the mother’s mobile telephone and the mother ensure that 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. 

2. Introduction of overnight time followed frequent day time periods which have been in place on an increasing duration basis since 2017. The father’s obligations associated with the extension to overnight time include:

   5.        For the purpose of spending time with X pursuant to paragraphs 3(c) and 3(d) and 3(e) of this Order, the father be responsible for the purchase of two sets of pyjamas, which are seasonally appropriate, and two robes and slippers for the child and the mother launder the pyjamas and return the pyjamas, robe and slippers in which X is wearing when collected by her to the father at the commencement of the child’s time with the father on Saturday.  The father return to the mother any clothes purchased by the mother and which are worn by or sent with the child during time spent with the father.

   6.        The father do all acts and things necessary to ensure that during time spent pursuant to paragraph 3(d)(ii) of this Order:-

   (a)His mother or his older sister, Ms N, sleep overnight in the same house as the child as a condition precedent to the child spending time with the father overnight;

   (b)In the event that the child becomes upset or cannot be consoled, within a reasonable time the father and his sister notify the mother by telephone and text and return the child forthwith to the mother at her residence.

3. The mother is to continue to be responsible for delivery and collection of X to and from the father’s residence for time.  An injunction against the mother remaining in the vicinity of the father’s home during time spent periods and the father’s attendance at maternal and child health care events, continues in full force and effect.  The mother had a history of waiting outside the father’s home to hear if X cried during her time with the father and the father found the mother’s presence to be intrusive.

4. The mother seeks that the current orders be suspended and that the father spend two hours per day with X at the mother’s home, not including the mother’s bedroom, and he wear gloves and a face mask as precautions against the spread of COVID-19.

5. The father opposes the variation sought by the mother and seeks no change to the current orders save that he will additionally take all reasonable protective measures and precautions within his home to protect X from contamination including disinfecting the premises prior to each visit, not permitting visitors (other than his sister Ms N) to his home and business premises situated thereon whilst X is present.

6. Mr Hoult referred to the Department of Human Services website for particulars of what constitutes isolation as applicable when a person has tested positive for COVID-19 or is ordered to isolate. The requirements included:[3]

   a)You must not attend work, school, childcare or university;

   b)You must not go to other public places such as restaurants, cinemas or shopping centres;

   c)You must not use public transport or taxis;

   d)You must not allow visitors into your home – only those who usually live in the household should be in the home;

   e)You must stay in a different room to other people as much as possible.

   [3] Department of Health and Human Services, About coronavirus (COVID-19), >

   Mr Hoult said that his client had not observed isolation (and nor is he required to) but called his client to give vive voce evidence of what steps he had taken.  The father was cross examined.

7. I take judicial notice of the fact that, even post imposition of further COVID-19 containment measures by the Victorian government between the dates for hearing of this matter (29 March and 1 April 2020), there is no restriction on the safe movement within Victoria of a child from one house to another.  The parents are expected to abide restrictions on the child and himself or herself not leaving their home except:

   a)To shop for food and essential supplies

   b)For medical care or compassionate needs

   c)To exercise (no more than 2 persons except of the same household)

   d)To work and study if you cannot learn remotely.

8. Direction 7(1)(a) of the 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) provides that a person may leave premises to meet obligations in relation to a shared parenting arrangements, whether the arrangements are under a court order or otherwise. “Premises” is defined as the premises at which the person ordinarily resides. These directions came into effect at 11.59pm on 30 March 2020. Direction 5(5) provides:

   If a person has more than one premises at which they ordinarily reside including a child under a shared parenting arrangement, each such premises is taken to be the person’s ordinary place of residence for the stay at home period.

   Example: a person works in the city during the week and resides at one premises during that time, but returns to a different at the weekend; a child who lives at different premises under a shared parenting arrangement.

   In this case, X has been spending three out of seven days in the father’s home.  Since 17 February that has been from 10.00 am to 6.00 pm and for the month before that it was from 10.00 am to 5.00 pm.  The regime immediately prior to the introduction of overnight time equates to 24 hours in a week.  The mother’s proposal is to reduce it to two hours each day which would be a maximum of 14 hours a week in restricted circumstances.

9. The Independent Children’s Lawyer supported the mother’s position at the hearing on 29 March 2020. 

Relevant history

1. It is necessary to provide some historical context to appreciate the depth of some of the issues in this interim determination.

2. The father is 39 years old and the proprietor of a business.  The mother is 38 years old and not employed outside the home.  She was an international student who arrived in Australia from Brazil in 2015 to study English and undertake tertiary education.  She took casual employment in the father’s business.  The parents had a brief, casual sexual relationship in April 2016, which resulted in the conception of X.  Conception occurred on their first occasion of intimacy.  It was not a planned pregnancy and the mother maintains (but the father denies) that the father assured the mother that he was using effective contraception.  In evidence, the father’s response was “I think we were both adults” or words to that effect and “she was quite aware that I wasn’t [wearing a condom] because I said that I didn’t have one and asked her to get off when I was ejaculating … so it was consensual.”  This represents the parents’ earliest conflict.

3. The parents commenced cohabitation shortly after discovering that the mother was pregnant.  The father’s evidence was that he had renovated his house, been preparing to find a partner and always wanted to have children.  On the other hand, when the mother realised that the father had not used a condom, she took a morning after pill.  The Family Report Writer records that Mr Koen reported that he was prepared for fatherhood but was happy to follow the mother’s wishes in relation to proceeding (or not) with the pregnancy.  Under cross examination at the parenting trial last December, the father voiced doubts as to whether the mother had wanted X.  He referred to the mother contemplating a termination of pregnancy.  He said that the mother missed her dogs in Brazil and wanted to go and see them whilst she was pregnant but that he had persuaded her not to go because they would all go after a Zika virus scare subsided.  The father recalled that during the pregnancy, the mother had tattoos of her dogs on her stomach and the father said she was “drinking during pregnancy”.  It was put to the father that he could not have doubted that, ultimately, the mother wanted to have the baby.  The father responded to the effect that: “there was that and what the intention of having that baby was […] I wasn’t sure if she originally wanted the child or if she wanted to stay in Australia.  I have heard that ladies from overseas would fall pregnant to stay in Australia. […]  I had only known her for a few months”.  The mother is a devoted parent and the father’s evidence must have been very hurtful for her to hear.

1. The mother’s case was that cohabiting with the father was unhappy. As the Family Report Writer recorded the mother: [4]

   …described Mr Koen as “so supportive” initially, but said he changed after they moved in together (approximately June 2016). Ms Biondi reported that Mr Koen asked her to pay him to marry her (though she later said that he said he was joking) and would “start fights” with her and get angry quickly, that he would criticise her and “scream and fight for nothing.” That the mother “said that she felt threatened and unsafe. She reported that Mr Koen’s threatening comments included comments like, “when the baby is born everything will be different, you’ll see.” She said Mr Koen was highly controlling of her and emotionally abusive, telling her she had to do things “by his rules,” that she was here alone and nobody cared about her. Ms Biondi reported that she applied for an IVO prior to separation because he kept making those comments. She said she complied with Mr Koen’s requests to complete the spousal visa application but she was never committed to it.

   Ms Biondi reported that Mr Koen would go to parties and return home “out of it” bragging about using drugs. She reported that he continued smoking despite her requests to stop even after X was born. She reported that he was insensitive to X’s needs, insisting that she bring X out for visitors to see her when she was unwell and sleeping. She reported that Mr Koen asked her to leave many times and when her mother was returning to Brazil (after an extended stay), she was too afraid to return alone and initiated separation by going to a hotel with X.”

   [4] Report of Ms O dated 5 February 2019 [14-15] annexed to affidavit of Ms O sworn 19 February 2019.

2. The maternal grandmother was in Australia for X’s birth.  The father alleges that the mother and maternal grandmother prevented from him having much to do with X after she came home hospital.  The parents finally separated in February 2017 when the mother left the family home with X who was then two months old.  It was that same day that the maternal grandmother returned to Brazil.

3. The Family Report Writer recorded [33]:

   Mr Koen described the relationship between them as “two strangers” trying to make a life together. He recalled odd behaviours by Ms Biondi early in pregnancy, which at the time he attributed (on the advice of his sisters) to “crazy pregnancy hormones” including getting tattoos of her dogs on her stomach at three or four months destation, and being desperate to go back to Brazil to see her dogs, not her family. Mr Koen recalled that he soon found Ms Biondi to be quite “unreasonable”, “hard headed” and illogical. He said he learned that Ms Biondi had to move houses about seven or eight times in the 12 months she had been in Australia due to interpersonal conflicts with housemates. He reported that she made hurtful comments, comparing him to Brazil men and previous sexual partners. He described her as being emotionally detached during sexual activity.

   […]

   He recalled that Ms Biondi talked about missing her dogs so much that he investigated the possibility of having them brought to Australia; he recalled that Ms Biondi thought it was reasonable for him to pay approximately $20,000 for this. He recalled that Ms Biondi would scream and shout at him, often walking out of the house, slamming doors and disappearing for long walks after disagreements.

4. In sum, the relationship ended without the parents ever functioning as a family to care for X.  The mother does not share a good relationship with the paternal family. As the Family Report Writer recorded [16]:

   …[the mother] reported that she did not know Mr Koen’s family history (eg., history of exposure to violence as a child) but that he was highly controlling of her relationships with his parents, he never left her alone with his father and he insisted on speaking in Language P to them so she could not understand.  She reported that he did not have a good relationship with them and that she had to encourage Mr Koen to maintain contact.”

   The father’s sisters did not form a bond with the mother.  They are of no comfort to the mother.  The father also reported [34] that he knew very little about Ms Biondi’s history but he mentioned her parents’ separation, domestic violence that the mother said she had “blocked out” and that he pushed the mother to reconnect with her family after she became pregnant.  Mr Koen paid for her mother to visit Australia for the birth of X.

5. Time spent between X and the father commenced in April 2017 after the father obtained an interim Order in the Federal Circuit Court of Australia. His time to be spent was subject to the substantial attendance of a paternal family member. Time increased incrementally by orders until by 2019 the father’s time was not subject to conditions.

6. The mother seeks to relocate X to Brazil, the mother’s country of origin. In the lead up to the trial, the two major evidential issues were the mother’s visa status and the ability of the father to be able to actually enforce any parenting orders in his favour in Brazil if the mother’s relocation application was allowed.

7. When this matter was originally listed for final hearing on 26 September 2019, the preliminary view of the Independent Children’s Lawyer was that X should remain in the primary care of the mother but, if the mother could not remain in Australia, X should remain here and “the Father must financially support the Mother’s ability to travel to Australia to spend time with the child.”  In the trial which concluded in December 2019 the Independent Children’s Lawyer reversed the preliminary view so that the mother and child would not be separated.  My concern is that the first expressed preliminary view of the Independent Children’s Lawyer may have fortified the father to maintain a position whereby the mother could leave Australia but the child had to remain here, which has only contributed to the negative relationship between X’s parents.

8. The mother instituted financial proceedings against the father seeking a property settlement.  The father opposed those orders.  Ultimately Victoria Legal Aid withdrew assistance for the mother to pursue that aspect of her case and no substantive orders were made in that respect.  The father has provided modest financial support to the mother, at a subsistence level but more than he thinks he should have to pay.  As a sole proprietor of his cleaning business, the father’s case was that he could arrange his work commitments to be available to care for X so that the mother could get a job. As the Family Report Writer stated [43] the father:

   …said that his ideal arrangement would be for Ms Biondi to “grow up” and to cooperate with him so that they could share the care of X equally.  He reported that he was able to care for X during the day and that Ms Biondi could care for her at night, with him having the “occasional sleepover weekend” whenever it was appropriate for her age. Mr Koen reported that he would be prepared to take on primary care if Ms Biondi needed to return to Brazil.

   Whilst it was necessary for the father to articulate a position, in doing so as he did, he relegated the mother’s role to a shift worker doubtlessly insulting the mother and demonstrating a lack of appreciation of the legitimate needs and expectations of the mother and, most importantly, the child.

9. The defended parenting case proceeded before me in late December 2019.  The early days were dominated by the vexing issue of the mother’s capacity to remain in Australia given that she is not a citizen and her visa was about to expire.  We proceeded with the hearing whilst the father’s immigration lawyers made what applications they could make, in the name of the mother and financed by the father, to ensure that the mother would not be apprehended by the authorities and deported during the trial.  It is now anticipated that the mother will be able to remain in Australia until the outcome of these proceedings is known but that any longer period of residence may be problematic and would be predicated on the father spending $60,000 to $100,000 on applications to enable her to do so.  

10. The Independent Children’s Lawyer reversed her view about X being separated from the mother in the event of the mother’s deportation.  To his credit, the father’s position also changed and his final position was that, in the unhappy event of the mother’s expulsion from Australia, X should not be separated from her mother.

11. I reserved my decision on 23 December 2019 in the expectation that I would deliver it in January or February 2020.  I determined ongoing time between X and the father pending delivery of my decision.

12. The introduction of overnight time was opposed by the mother on 23 December 2019.  The mother’s position has consistently been that overnight time should not be introduced until X is 5 years old, in late December 2021, regardless of whether X is living in Melbourne or Brazil.

13. Between December 2019 and January 2020 X’s time with the father was from 10.00am to 4.00pm each Wednesday Thursday and Saturday.  From 13 January to 17 February the time was extended by an hour from 10.00am to 5.00pm that each Wednesday Thursday and Saturday.  From 17 February to 23 March 2020 X’s time with the father was extended by an hour from 10.00am to 6.00pm each Wednesday Thursday and Saturday during which time the father was to ensure that X was fed dinner, bathed and changed into her pyjamas.  Thereafter, the paragraphs of the Order which introduced overnight time were to have effect, save that such overnight time did not occur last week.

14. In the context of the final hearing, the Family Report Writer, Ms O commented on the parents’ views of a co-parenting relationship.  She described the parent’s relationship as “characterised by high reciprocal mistrust and poor communication (attributed solely to the other parent) raising significant risks for X’s emotional and physical wellbeing.”[5]  That certainly accords with my observation.

    [5] Ibid [67]

15. In relation to the father’s perception of the mother, Ms O noted that: [6]

    Mr Koen reported that Ms Biondi had no intention of co-parenting with him.  He reported that she refused to be civil; he said he now made no comment at all at handover because it previously turned to conflict. Mr Koen reported that Ms Biondi was inflexible and scheduling, offering no additional time Mr Koen reported that Ms Biondi failed to communicate with him about X even though even through the MyMob application.

    [6] Ibid [38]

16. By way of summary, it appears that the parents were ill matched from the beginning of their relationship to the point that the foundation of a respectful and trusting relationship was never at any time established. Indeed such relationship as exists between the parties is characterised by mistrust, deep suspicions and misapprehensions. The consequence for X is that she has never, and will never, know what it is to live within a close familial relationship bound by trust and affection.

Discussion

1. On top of a parental relationship which is devoid of any positive history and  mutual trust, this matter is made almost intractable by the singular circumstance of the COVID-19 pandemic in which we all find ourselves and to which we are all inescapably subject.  Uppermost in my deliberations is keeping X as safe as possible.

2. The mother is justifiably concerned about being vulnerable.  She has no private health cover.  She is not covered by Medicare.  If she falls ill, she has no family support of her own in Australia.  If X or the mother (but not both) become infected with COVID-19, the mother may have to be separated from X for the exclusion period which, I understand that is currently 14 days.  X has not been separated from the mother for a night, let alone 14 days.

3. The mother’s response is to be vigilant and take a high level of precautions.  She has largely confined X and herself to their home.  They are the only occupants of their two bedroom accommodation.  When X and the mother venture out, they immediately shower and change their clothes upon returning home.  I do not regard the mother’s precautions as overly vigilant but they do set a high standard against which she assesses her understanding of what occurs in the father’s home.

4. Part of the father’s parenting case concluding in December 2019 is that X will benefit from the affection of and inclusion of her in his extended family and group of friends.  However, in the context of social distancing, a crowded house is a matter of enormous concern for the mother.  The father gave evidence that he has engaged in social distancing, he has no visitors apart from one sister to his home.  He showed evidence of how he is managing to conduct his business without having to come into contact with employees or even his managers.  He stated that he had provided the mother with disinfectant and toilet tissue and that he had personally disinfected every surface of his home prior to the last anticipated visit.  The father was cross examined.  I also saw him cross examined extensively at the hearing in December.  It is easy to over emphasise the significance of cross examination on issues such as these.  I will not accord much weight to the fact that the father’s evidence was not shaken by Mr Whitchurch (for the mother) or Mr Eidelson (for the Independent Children’s Lawyer).  

5. It is conceded that the mother is anxious at this time.  At the defended hearing, the mother impressed as a thoughtful but protective mother who was not motivated to exclude the father from X’s life.  Whereas she has views which could readily be construed as intentionally disruptive of X’s relationship with the father such as:

   ·Being restrictive about time between the father and X;

   ·Not attending parenting courses which she was ordered to attend;

   ·Lingering outside the father’s home for the entirety of the time spent to hear if X was crying;

   ·Following the father during time with X;

   ·Resisting overnight time for X with the father until she is aged five years (2021);

   ·Referring to the father as “Mr Koen”.

6. To the extent relevant for this interim determination, I am satisfied that the mother is motivated by what she regards as best for her daughter and that her behaviour is based in a cultural and societal norms different to ours.  Her non-attendance at a parenting course was likely to have been contributed to by insufficiently strong legal advice that she was required to attend.  She has not impressed me as a witness with guile.  If she was being cunning in her own case, she was not clever about it as many of her behaviours were potentially self-defeating.

7. At the hearing last December, the mother impressed me as a mother under stress of potentially being trapped in Australia indefinitely, genuinely motivated to allow the father to have a relationship with X if she could return to Brazil but potentially thwarted by an ineffective system for family law in Brazil.  I am satisfied that the anxiety which she expresses through the submissions of Mr Whitchurch is genuine.  I do not regard the mother’s anxiety as feigned in an effort to marginalise the father and, indeed, Mr Hoult did not make that submission.  Mr Hoult’s submission was that the mother’s proposal was unworkable because of the parents’ poor relationship and not justified on the father’s evidence about his conservative actions to keep X safe.

8. I accept that the mother does not, and cannot expect to, look upon the father as a source of comfort and support in what is an additionally difficult time.

9. I accept the submission of Mr Hoult that the mother’s proposal is unworkable.  If the mother’s concerns about the father were reasonable (and I am not satisfied they are), to have him in her home each day, even with gloves and a face mask, it could potentially contaminate the mother’s presumably safe environment.

10. I am satisfied that the mother’s fears for X’s safety are genuine but I am not satisfied that they are reasonably held.

11. I have regard to the impact that introducing overnight time at this juncture might have upon the mother’s  parenting capacity as she is the primary carer and X’s emotional wellbeing is closely linked to the mother’s emotional wellbeing. In Russell & Close (Appeal SA45 of 1992, unreported judgment delivered 25 June 1993) at [32]-[33] reference was made to the issue of parental anxiety:

    In upholding children’s rights to protection from sexual, psychological or emotional harm, the Court must take into account any anxiety on the part of the primary caregiver concerning the child’s exposure to potential harm where such anxiety is likely to impact adversely on that parent’s caregiving ability.’

    In taking into account the belief of the custodial parent of abuse by the non-custodial parent of the children and the effect of such belief on that parent as primary caregiver of the children, and consequent harm to the children, a subjective test is employed. However, it must be shown that such belief on the part of the custodial parent is genuinely held. Where it appears on the whole of the evidence such belief is entirely irrational and baseless, the genuineness of the belief of the custodial parent will clearly be open to doubt.

12. This is consistent with the comments of Fogarty, Baker and Purvis JJ in B & B (1993) FLC 92-357 at page 79,780:

    It is not unreasonable for the Court to take into account in assessing whether an unacceptable risk exists, the need for a custodial parent to be assured of the children’s protection. As primary caregiver, anxiety about the children’s exposure to potential harm is likely to impact adversely on that parent’s ability to care for the children.

13. I am satisfied that introduction of overnight time for X will impact negatively on the mother.  However, she has demonstrated significant resilience in difficult circumstances during all of this case and my assessment is that she will be able to manage her anxiety, particularly if the frequency of time is reduced.  Furthermore, I do not foresee that, in the current climate of the pandemic, the mother’s anxiety will be much reduced, if reduced at all, by not introducing overnight time.

14. The fact of the matter is that until last week, X has been spending 24 hours a week, over three days, in the father’s household.  I acknowledge that the mother is seeking to reduce that time in light of what she contends are current necessities.  However, X has become accustomed to long days with the father and I assess that impact of the mother’s proposal on her would be deleterious to the relationship that X has with her father to a degree which is not warranted, even having regard to the mother’s anxiety.  However, I am satisfied that the introduction to overnight time should be accompanied by some respite for the mother from three face to face spend time periods each week.

15. I am currently minded to reduce the face to face spend time arrangements to twice in each week.  One period of eight hours from 10.00 am to 6.00 pm and another from 10.00 am one day to 10.00 am the next day.  If the mother elects to bath X immediately after she returns to her household, and communicates this, the father should be relieved from bathing the child.  The child should not be bathed twice in one night.  There should be audio visual communication of 30 to 40 minutes on three other days of the week.   

16. What I am currently minded to do falls outside the parties’ positions.  It may be an abundance of caution but I want to accord procedural fairness to the parents and the Independent Children’s Lawyer. I will adjourn this matter for 24 hours after delivery of these reasons to hear any further submissions and, at the end of those submissions, to consider the case and make orders.

Conclusion

1. On 1 April 2020. I heard further submissions as to substance of the order which I was contemplating but of which the parties had not had notice. Counsel and the clients were linked to the court by video.

1. There was no interpreter for the mother. The mother said that she had requested an interpreter but there was no record of her solicitor having made that request to the Case Coordinator.

2. Mr Whitchurch, for the mother, submitted that introduction of any overnight time should be staggered and occur on a fortnightly basis for the next first month as had been the case in the Order made on 23 December 2019. He reiterated that the mother is worried about her health, distressed, tearful (which I observed for myself via video) and unable to access psychological support to ease her distress. Mr Whitchurch clarified that the mother is currently not physically ill but informed that court that the mother cannot afford to go to the doctor and feels vulnerable as a result. The father did not oppose assuming responsibility for payment of the mother’s reasonable out of pocket medical expenses to enable the mother to attend her general medical practitioner and her psychologist as needs be. I will require the mother to seek a mental health plan for attendances upon the psychologist, Ms E or any other psychologist of her choice.  

3. It is appropriate, indeed desirable, that the mother make these reasons for decision available to her psychologist and any other health professional from whom she seeks treatment.

4. I am not convinced that a staggered approach to introduction of overnight time is warranted given the interruption to the spend time arrangements which has already occurred. In particular, I am not satisfied that any prolongation of the process will make the reality of overnight time easier for the mother to bear. Figuratively speaking, it might be like removing a band aid slowly. I consider it to be in the best interests of X for overnight time to commence next week.

5. Mr Whitchurch sought that the mother be able to have Skype time with the child when the child is with the father at the child’s request and at bedtime. Read in conjunction with the provisions of the Order made 23 December 2019 which require the father to cut short his time with X if X becomes upset and cannot be consoled, I am against the child speaking to the mother immediately before the child’s bedtime. I will order a brief (five minute) Skype communication at 5.00pm on Wednesday which I calculate is about two hours before X’s bedtime.

6. The mother’s preference is to bathe X on Monday evenings after she collects X from the father’s home at 6.00pm. Accordingly, the father is relieved from bathing X on Mondays.

7. The father agreed to the mother’s request for petrol money having regard to her continuing responsibility for all transport associated with face to face time. I am satisfied that there is a real benefit to X in the mother undertaking the transport. The father is paying the mother $545 per week by way of periodic spousal maintenance and child support. He agrees to increase that periodic payment by $30 per week to $575.

8. The independent children’ lawyer supported the Order in the form it was made. Mr Hoult did not seek to make further submissions.

9. I am satisfied that this Order is consistent with X’s best interests.

10. This interim determination commenced with me granting leave to all parties to re-open their case in the final defended parenting proceedings in which evidence was concluded in December 2019 and written submissions were concluded earlier this year. I was notified today that no party seeks to adduce further evidence or make further submissions in the substantive proceedings. It was agreed that, in due course, my reasons will be distributed with draft orders. After the parties and their practitioners have had an opportunity to digest the reasons, the matter will be relisted and I will hear from counsel on the final form of the order. Accordingly, my final decision remains reserved to be delivered on a date to be fixed.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 1 April, 2020.

Associate:

Date:  1 April 2020