Biondi & Koen (No 2) - [2024] FedCFamC1A 131

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Biondi & Koen (No 2) [2024] FedCFamC1A 131

Appeal from: Biondi & Koen (No 6) [2024] FedCFamC1F 294

Appeal number: NAA 135 of 2024

File number: MLC 2872 of 2017

Judgment of: AUSTIN J

Date of judgment: 8 August 2024

Catchwords: FAMILY LAW – APPEAL – Application in an Appeal – Adjournment – Where the appellant seeks an adjournment of the appeal hearing for not less than two months – Where the appellant has already been granted legal aid for counsel’s appearance at the appeal hearing – Where the appellant gave no evidence to suggest the adjournment will improve her circumstances – Where allowing the appeal to be adjourned would prejudice the respondent – Application refused – Procedural orders varied – Costs reserved to the Full Court.

Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 32, 35

Number of paragraphs: 12

Date of hearing: 8 August 2024

Place: Newcastle (via video link)

Counsel for the Appellant: Mr Devries

Solicitor for the Appellant: MacGregor Solicitors

Counsel for the Respondent: Ms Swann

Solicitor for the Respondent: Lander & Rogers

The Independent Children's Lawyer: Not participating in the appeal
ORDERS

NAA 135 of 2024
MLC 2872 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS BIONDI

Appellant

AND:
MR KOEN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

8 AUGUST 2024

THE COURT ORDERS THAT:
1.The time for compliance with Order 7 made on 10 July 2024 is extended until 14 August 2024.
2.The time for compliance with Order 8 made on 10 July 2024 is extended until 21 August 2024.
3.Otherwise, the Application in an Appeal filed on 5 August 2024 is dismissed.
4.The costs of the application are costs in the appellate cause.

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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Biondi & Koen (No 2) has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENT
AUSTIN J:

This appeal, which lies from parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 6 May 2024, was filed on 3 June 2024.
On 10 July 2024, the appeal registrar listed the appeal for hearing before the Full Court on 27 August 2024, having foreshadowed fixing that hearing date in an email sent a week before, and made procedural orders to ensure documents were filed and served by the parties…

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) [2024] FedCFamC1A 131
Case: [2024] FedCFamC1A 131
Decision Date: 8 August 2024

CaseChat Overview and Summary

The case of Biondi & Koen (No 2) was heard by the Federal Circuit and Family Court of Australia, Appellate Division. The appellant, Ms Biondi, sought an adjournment of the appeal hearing for not less than two months. This appeal stemmed from a family law matter, specifically regarding an application in the appeal process. The respondent, Mr Koen, opposed the adjournment application on the grounds that it would cause him prejudice.

The legal issue before the court was whether the appeal hearing should be adjourned and, if so, for how long. The court considered the circumstances under which the adjournment was requested, including the fact that Ms Biondi had already been granted legal aid for counsel’s appearance at the appeal hearing. Additionally, the court examined whether the adjournment would improve Ms Biondi's circumstances and if allowing the adjournment would cause prejudice to Mr Koen.

In its reasoning, the court determined that Ms Biondi had not provided sufficient evidence to suggest that the adjournment would improve her circumstances. The court also found that allowing the appeal to be adjourned would indeed prejudice Mr Koen. Consequently, the application for an adjournment was dismissed. The court did, however, extend certain procedural orders related to the case, specifically those concerning compliance deadlines. The costs of the application were declared to be costs in the appellate cause, with the final determination of costs reserved to the Full Court.

The final orders of the court extended certain compliance deadlines but dismissed the application for an adjournment of the appeal hearing. The costs of the application were determined to be costs in the appellate cause, with the final costs order to be made by the Full Court.

Orders

Orders of the court

NAA 135 of 2024

MLC 2872 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS BIONDI

Appellant

AND:

MR KOEN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

8 AUGUST 2024

THE COURT ORDERS THAT:

1. The time for compliance with Order 7 made on 10 July 2024 is extended until 14 August 2024.

2. The time for compliance with Order 8 made on 10 July 2024 is extended until 21 August 2024.

3. Otherwise, the Application in an Appeal filed on 5 August 2024 is dismissed.

4. The costs of the application are costs in the appellate cause.

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).

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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NAA 135 of 2024 MLC 2872 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MS BIONDI Appellant
AND:	MR KOEN Respondent
INDEPENDENT CHILDREN'S LAWYER

Appeal from:	Biondi & Koen (No 6) [2024] FedCFamC1F 294
Appeal number:	NAA 135 of 2024
File number:	MLC 2872 of 2017
Judgment of:	AUSTIN J
Date of judgment:	8 August 2024
Catchwords:	FAMILY LAW – APPEAL – Application in an Appeal – Adjournment – Where the appellant seeks an adjournment of the appeal hearing for not less than two months – Where the appellant has already been granted legal aid for counsel’s appearance at the appeal hearing – Where the appellant gave no evidence to suggest the adjournment will improve her circumstances – Where allowing the appeal to be adjourned would prejudice the respondent – Application refused – Procedural orders varied – Costs reserved to the Full Court.
Legislation:	Federal Circuit and Family Court of Australia Act 2021 (Cth) s 32, 35
Number of paragraphs:	12
Date of hearing:	8 August 2024
Place:	Newcastle (via video link)
Counsel for the Appellant:	Mr Devries
Solicitor for the Appellant:	MacGregor Solicitors
Counsel for the Respondent:	Ms Swann
Solicitor for the Respondent:	Lander & Rogers
The Independent Children's Lawyer:	Not participating in the appeal

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	8 AUGUST 2024