Biondi & Koen (No. 2)
[2021] FamCA 233
•23 April 2021
FAMILY COURT OF AUSTRALIA
Biondi & Koen (No. 2) [2021] FamCA 233
File number(s): MLC 2872 of 2017 Judgment of: BENNETT J Date of judgment: 23 April 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – leave to re-open parties’ cases in proceedings where judgment is reserved – principles to be applied in granting leave - where leave granted to re-open to adduce specific evidence. Legislation: Family Law Rules 2004 (Cth) Cases cited: Biondi & Koen[2021] FamCA 230 Number of paragraphs: 15 Date of hearing: 22 April 2021 Place: Melbourne Solicitor for the Applicant: Berry Family Law 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 2872 of 2017 BETWEEN: MR KOEN
Applicant
AND: MS BIONDI
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
22 APRIL 2021
THE COURT ORDERS THAT:
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 … 2016 and the mother of returning to Brazil; and
(b)the ease of exercising international access across international borders during pandemic conditions in Brazil.
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.
4.By not later than 2.00pm on Friday 23 April 2021 the Proper Officer of the solicitors, Berry Family Law, notify the mother in writing of the basis upon which they would continue to act for her in the proceedings going forward and the costs claimed by that firm for acting on her behalf to date.
5.This matter be listed for further mention on 28 April 2021 at 9.00am with an estimate of one hour and the parties be at liberty to adjourn the matter administratively by consent if it is agreed the matter is not sufficiently progressed for the mention to be productive.
6.The Application in a Case of the father filed 9 March 2021 is otherwise dismissed.
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).
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).
REASONS FOR JUDGMENT
BENNETT J:
This matter comes before me by way of a mention to clarify how the mother wishes to go forward with her opposition to the application of the father filed on 22 March 2021. The father in his applications seeks leave to adduce new evidence including evidence in relation to Brazil’s response to the pandemic as compared to the response in Australia, vaccinations for adults and children against COVID-19 and the practical impact of COVID-19 in relation to the issue of relocation.
The parenting proceedings concern X who is 4 years old. I heard the parenting proceeding between the mother, father and Independent Children’s Lawyer from 18 to 23 December 2019 and reserved my decision. In the succeeding thirteen months, the COVID-19 pandemic manifested in Melbourne and the matter came before me on two interim applications which resulted in further interim orders on 1 April 2020 and 10 December 2020. Whilst my decision remained reserved, the matter was mentioned before me on 8 February to receive the parties’ concessions about implications of the pandemic so that those concessions could be reflected in my reasons. Later in February 2021, I published draft reasons and orders from which it is apparent that the mother will be permitted to relocate X’s residence to Brazil, the mother’s country of origin. In that context, the father now seeks to re-open his case to adduce new evidence in relation to Brazil’s response to the pandemic as compared to the response in Australia, vaccinations for adults and children against COVID-19 and the practical impact of COVID-19 in relation to the issue of relocation.
On 6 April 2021, I ordered that the father provide $10,000 to be applied to the mother’s costs of opposing his application where I was satisfied that the justice of the situation required the mother to be represented in this fairly nuanced case, that she had no means with which to retain legal representation herself and is not eligible for further legal aid. My reasons for decision in that regard are at [2021] FamCA 230.
Today the mother is represented by Mr Turnbull, solicitor, of Berry Family Law. Ms Sims, solicitor, appeared for the father and Mr Eidelson appears for the Independent Children’s Lawyer.
I will leave to one side that the mother’s new solicitors purports to have exhausted half of the wife’s $10,000 allowance for costs in order to familiarise themselves with the matter and to draw an estimate the costs to be reasonably incurred by the mother at $47,528. The solicitors agree to detail their position to the wife in writing by tomorrow afternoon as to what costs the firm proposes to charge the mother to date and into the future. I will deal with this later if needs be.
Generally, the test for reopening a case is whether or not it is in the interests of justice to do so – that is, whether the interests of justice are better served by allowing an application to adduce further evidence, or by rejecting the application. There are certain subtests to the reception of further evidence:
(a)It should be evidence which, if accepted, would most probably affect the result of the case;
(b)It should be evidence which, with reasonable diligence, could not have been discovered at the time; and
(c)The Court must consider the prejudice which will be suffered by the other party if the further evidence is admitted.
In parenting cases, the overriding principle is what is in the best interests of the child, because that is the paramount consideration procedurally and also substantively. I must have regard to the circumstances as they exist at the date of the hearing, rather than the date that the application was made. When I say the date of the hearing, the hearing includes all of the time up until when my judgment is delivered and orders are pronounced. It follows that, as I reserved my decision on 23 December 2019, I do need to have regard to developments in relation to the children which are relevant and which occurred after that date.
I am satisfied that evidence of the nature sought to be led by the father may impact the form of the orders which I finally make. I am satisfied that this was not evidence which could have been called or discovered at the time of the final hearing.
Mr Turnbull, for the mother, submits that, unless I make orders for payment of more costs by the father, that the mother will be unrepresented and disadvantaged in the presentation of her case. I do not accept that the father has to pay $47,528 on account of the mother’s legal costs to be able to re-open his case. It is a matter of degree. The mother may seek that the father be solely responsible for payment of a single expert witness to report and give evidence and apply the $10,000 to directly briefing counsel to appear. The mother may obtain pro bono assistance and not need to take any of the $10,000. Come what may, fully funded representation for the mother by Berry Family Law, does not appear feasible on the facts on the case as I know them.
On the nature of the new evidence, the Court was informed that the mother seeks to retain an expert paediatrician and respiratory diseases specialist whom she identifies. Otherwise, he did not comment on the breadth of the proposed fresh evidence.
Ms Sims for the father merely clarified that health issues in relation to travelling to Brazil would include vaccination as a means of taking precautions.
The Independent Children’s Lawyer supports both parents being able to adduce further evidence.
I did not hear any party to object to the manner in which I expressed what the further expert evidence can relate.
I will grant leave to all parties to re-open their cases to adduce further limited evidence.
The next issue is directed to evidence of the impact of COVID-19. Based on the evidence before me am, I am not prepared to permit the mother to adduce evidence from another expert witness. The father already has an expert. The primary position is that the parties jointly retain an expert to give evidence and that a party can only rely on their own expert with permission of the Court (r 15.51 Family Law Rules 2004 (Cth)). In the interests of saving time (and costs), I suggested Prof. S as a single expert witness. I have not seen Prof. S give evidence but understand that he has previously given evidence in this Court in relation to pandemic conditions in Brazil. It is up to the parties to select their own joint expert and the Court will intervene only if no expert can be agreed upon. I understand that the solicitor for the father has left a message for Prof. S, who is in Country T, to ascertain his availability and fees. I have adjourned the matter for mention on 28 April 2021. If the parties are not ready, a further adjournment can be ordered administratively.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 23 April 2021