Biondi & Koen - [2021] FedCFamC1F 368

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Biondi & Koen [2021] FedCFamC1F 368

File number(s): MLC 2872 of 2017

Judgment of: BENNETT J

Date of judgment: 3 November 2021

Catchwords:
FAMILY LAW – PARENTING – where matter not finalised after a final hearing – where father seeks to further expand evidence to be adduced on re-opening his case – where all parties are permitted to adduce evidence of relevant matters since 23 December 2019.

FAMILY LAW – PARENTING – where each parent is entitled to rely on evidence of an expert other than a single expert witness as to Country D’s response to the COVID-19 pandemic, as compared to Australia’s and the vaccination for adults and children against COVID-19 and .the practical impact of COVID-19 in relation to the issue of relocation.

Division: Division 1 First Instance

Number of paragraphs: 9

Date of hearing: 3 November 2021

Place: Melbourne

Counsel for the Applicant: Mr Marchetti

Counsel for the Respondent: Ms Stoikovska

Solicitor for the Respondent: Lander And Rogers

Counsel for the Independent Children’s Lawyer: Mr Eidelson

Solicitor for the Independent Children’s Lawyer: Southern Family Law
ORDERS

MLC 2872 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS BIONDI

Applicant

AND:
MR KOEN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BENNETT J

DATE OF ORDER:

3 NOVEMBER 2021

THE COURT ORDERS THAT:
1.The father have leave to make an oral application to enlarge the evidence which he can adduce pursuant to paragraph 2 of the Order made 22 April 2021 to include investigations by child protection authorities and other parenting issues which have developed in recent months.
2.The mother have leave to make an oral application to adduce evidence from other than a single expert witness being Professor W and for further litigation funding.
3.The oral applications proceed for determination this day.
4.Paragraph 2 of the Order made on 22 April 2021 be varied to include:
“c) relevant developments or events which have occurred since evidence was concluded on 23 December 2019.”

5.In relation to paragraph 2(a) and (b) of the Order made 22 April 2021, the father be permitted to adduce expert evidence from Dr V and the mother be permitted to adduce evidence from Professor W (“the experts”) and each parent file and serve the evidence upon which they rely by not later than 19 November 2021 at 12 noon.
6.The parents do all acts and things necessary to ensure that the experts confer by not later than 1 December 2021 in an effort to reach agreement on any issues and at the conclusion of such conference the experts prepare a memorandum outlining the matters upon which they have agreed and the matters upon which they cannot agree and the implications of the matters upon which they cannot agree.
7.Pursuant to section 91B of the Family Law Act 1975 (Cth), IT IS REQUESTED THAT the Department of Families, Fairness and Housing (“the Department”) intervene in these proceedings.
8.Upon request from the Department, the…

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 [2021] FedCFamC1F 368
Case: [2021] FedCFamC1F 368
Decision Date

CaseChat Overview and Summary

In the case of Biondi & Koen, the Federal Circuit and Family Court of Australia, Division 1, dealt with a dispute between the parents of a child, X, regarding parenting arrangements. The primary issue before the court was whether the father should be permitted to further expand the evidence to be adduced on reopening his case, which had not been finalised after a final hearing. Additionally, the court had to determine whether each parent was entitled to rely on evidence of an expert other than a single expert witness concerning various matters, including the COVID-19 pandemic and its impact on the relocation of the child.

The court examined the legal principles surrounding the reopening of cases and the admissibility of expert evidence in family law proceedings. The court noted that while the general rule is that evidence adduced after the final hearing is not admissible, exceptions can be made in exceptional circumstances. The court considered the father's application to adduce new evidence concerning the COVID-19 pandemic and its impact on the relocation of the child as exceptional circumstances warranting an exception. Furthermore, the court found that each parent was entitled to rely on evidence from their respective experts, as opposed to a single expert witness, given the complexity and significance of the issues at hand.

In its judgment, the court granted the father's application to adduce further evidence, allowing him to present investigations by child protection authorities and other parenting issues that had developed since the initial hearing. The court also permitted the mother to adduce evidence from an expert other than the single expert witness initially proposed. Additionally, the court requested the Department of Families, Fairness and Housing to intervene in the proceedings and submit a report on their involvement in the matter since December 2019. The court set out detailed orders regarding the admissibility of evidence, the appointment of experts, and the payment of costs associated with the reopening of the case.

Orders