Biondi & Koen (No. 2) - [2021] FamCA 233

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…

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 (No. 2)

Details

AGLC: Biondi & Koen (No. 2) [2021] FamCA 233
Case: [2021] FamCA 233
Decision Date: 23 April 2021

CaseChat Overview and Summary

In the matter of *Biondi & Koen (No. 2)*, the applicant, Mr Koen, and the respondent, Ms Biondi, sought leave to re-open their cases before Bennett J in proceedings where judgment had been reserved. The dispute concerned family law matters, and the application for leave to re-open was made to adduce specific evidence.

The primary legal issue before the court was the principles to be applied in granting leave to re-open a party's case after judgment has been reserved. The court was required to determine whether the proposed evidence was of such a nature that it ought to be admitted, despite the stage of the proceedings.

Bennett J granted the parties leave to re-open their respective cases, applying the principles that such leave may be granted where the evidence is significant and could not have been obtained with reasonable diligence prior to the reservation of judgment. The court specifically confined the evidence to be adduced to the health risks to the child X and the mother of returning to Brazil, and the ease of exercising international access across international borders during pandemic conditions in Brazil. The court also requested the independent children's lawyer ascertain the availability of an epidemiologist or other qualified person to act as a single expert witness. The father's application filed on 9 March 2021 was otherwise dismissed.

Orders

Orders of the court

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).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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

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