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 Court provide it with copies of all documentation relevant to the proceedings before the Court to enable the Department to consider the request to intervene in these proceedings.
9.In the event that the Proper Officer of the Department does not consider that the Department’s response to paragraph 6 of this Order requires the Department to prepare a report in this matter, IT IS REQUESTED THAT pursuant to s 69ZW Family Law Act 1975 (Cth), the Department provide a report of its involvement in this matter since December 2019.
10.The father pay the further sum of $12,500 on account of anticipated costs of the mother, such payment to be made to the mother’s solicitors, Macgregor Solicitors.
11.For the purpose of the payment required by the preceding order, the solicitors for the father pay one half of any monies paid to them by or on behalf of the father, to Macgregor Solicitors on account of the father’s liability pursuant to the preceding order, until the monies so paid reach the sum of $12,500.
12.For the avoidance of doubt, the sum of $12,500 is due and payable immediately and may be paid by the father directly to the mother’s solicitors and/or pursuant to paragraph 11 of this Order.
13.The monies previously paid by the husband pursuant to the Order made on 22 April 2021, being the sum of $10,000, be paid by the husband’s solicitor to Macgregor Solicitors forthwith.
14.The mother’s solicitor be and is hereby entitled to draw upon the monies received provided the solicitor first prepares and accounts for same (which account should not divulge information to which legal professional privilege could be argued to apply) and provide the husband’s solicitors with a copy of that account 7 days prior to any monies being drawn on. In the event that the father contests the propriety of any alleged payment he be at liberty to have the matter listed before me by arrangement with my Chambers – email ....
15.Pending the father’s compliance with paragraph 10 herein, the father be and is hereby restrained by injunction from causing permitting or suffering any monies to be paid by the father or on his behalf for legal costs or disbursements to any person other than his solicitors on the record.
16.The parties be at liberty to issue an unlimited number of subpoenas to produce documents or to give evidence.
17.In response to the Notice of Request for Information from the Department dated 22 October 2021 the Court provide the documents requested and also my reasons for decision delivered on 12 February 2021, which is Exhibit “C2” in this proceeding to the Proper Officer of the Department, NOTING THAT those reasons are the only reasons which have been published to date and do not take into consideration any evidence yet to be adduced pursuant to the Order made on 22 April 2021 (as amended).
18.The further hearing of this matter at which further evidence is to be adduced and the hearing concluded be set down for 8, 9 and 10 December 2021 at 10.00 am.
19.In anticipation of the further hearing, the parties file and serve all evidence upon which they seek to rely (with the exception of the evidence in paragraph 4 of this Order); as follows:
(a)The father by not later than 22 November 2021;
(b)The mother by not later than 29 November 2021; and
(c)The independent children’s lawyer by not later than 1 December 2021.
20.In the event that the Department has not provided a report to the Court by 18 November 2021 the parties discuss with one another the postponement of the dates by which they file their material and if no agreement can be reached the independent children’s lawyer promptly notify my Chambers and the matter be listed for mention.
21.By not later than 1 December 2021 the independent children’s lawyer publish her preliminary view to the parties, and copy same to my Chambers, of what orders she considers ought be made to dispose of all parenting issues in relation to the child X born in 2016.
22.My reasons for decision this day be delivered subsequently.
23.The parties file and serve an outline of case as follows:
(a)The father by not later than 3 December 2021 at 4.00pm;
(b)The mother by not later than 6 December 2021 at 4.00pm; and
(c)The independent children’s lawyer by not later than 7 December 2021.
AND THE COURT NOTES:
A.The information produced by the Department of Families, Fairness and Housing is confidential and cannot be disclosed to any other person without an order of this Court.
B.Section 121 of the Act provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public or a section of the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.
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 Biondi & Koen has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BENNETT J:
This matter comes before me for mention in circumstances where I heard contested parenting proceedings in relation to X, who is nearly five years old, which concluded on 23 December 2019. My decision was reserved during the period of the pandemic from March 2020 until February 2021. On 12 February 2021, I delivered my reasons for decision which permitted the mother to relocate X’s residence to the mother’s country of origin, being Country D. I requested that the parties look at my draft orders, and given the quite detailed nature of the orders, provide any refined draft for use by me. The parties have not done so.
By application made on 22 March 2021 the father applied to reopen his case to adduce further evidence. The orders sought were that the father have leave to adduce new evidence, and including in relation to the following:
(1)Country D’s response to the COVID-19 pandemic, as compared to Australia’s.
(2)The issue of vaccination for adults and children against COVID-19.
(3)And the practical impact of COVID-19 in relation to the issue of relocation.
The father also sought that the mother and/or the child obtain such vaccination against COVID-19 as may be eligible for in Australia prior to any travel to Country D, and to provide the court and the parties with evidence of the vaccinations within 48 hours. That application was set down for hearing before me on 6 April 2021. On 6 April 2021, I adjourned the matter to 22 April 2021 at 9 am for mention. At the mention, the mother was required to specify whether she proposed 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.
On 6 April 2021, I ordered that 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 proceedings, and matters relevant if further evidence is adduced. My reasons for decision on that day were published in case neutral citation [2021] FamCA 230.
On 22 April 2021, I ordered inter alia:-
1. The parties have leave to re-open their respective cases in these proceedings.
2. The evidence to be adduced as a consequence of the re-opening be confined to:
a. the health risks to the child X born in 2016 and the mother of returning to Country D; and
b.the ease of exercising international access across international borders during pandemic conditions in Country D.
3. IT IS REQUESTED that the independent children’s lawyer ascertain the availability of Dr S, epidemiologist, or such other appropriately qualified persons as the parties may agree upon, to act as a single expert witness in these proceedings.
On 28 April 2021, I ordered that the matter be adjourned to a date to be fixed, to be notified that the parties in writing when a period of two to three days becomes available on my calendar. That hearing time was to be allocated for the further evidence to be adduced. The parties informed the court that they would be adducing evidence by a single expert witness, the identity of whom was not then agreed. In the ensuing months, there was no agreement in relation to a single expert witness. Indeed, by July 2021, it was apparent that there would be no agreement in relation to a single expert witness. Today it is apparent that each parent wishes to rely on their own expert.
In the vexed circumstances of this case, I am prepared to dispense with a single expert witness and allow the parties to each adduce expert evidence.
The family has now come to the attention of the Department of Families, Fairness & Housing (DFFH). Submissions of senior counsel for the father were to the effect that DFFH’s current investigation about X is a matter which must be considered by the court in its assessment of whether it is in the best interests of X for the mother to be permitted to relocate X’s residence to Country D. Further, that if the DFFH’s investigations indicate facts or matters which prove or tend to prove that the mother’s care of X is in any way deficient, then the father must be given the opportunity to pursue a case and call further evidence in that regard.
I have made a request for intervention pursuant to s 91B as well as an order under s69ZW. I want to avoid a situation where DFFH decline to intervene and merely send correspondence indicating that there is, or is not, information on DFFH’s file that might assist the court in which case there may be no evidence of any conclusion(s) reached by DFFH about the welfare of X in the care of the mother and/or the father.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Bennett delivered on 3 November 2021. Associate:
Dated: 16 February 2022