FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Biondi & Koen (No 2) [2022] FedCFamC1F 64
File number(s): MLC 2872 of 2017 Judgment of: BENNETT J Date of judgment: 28 January 2022 Catchwords: FAMILY LAW- PARENTING – where parenting proceedings have been heard in a disjointed manner and parties have leave to re-open their cases – where private family report ordered to be prepared by a specific expert where parties are unable to agree on a family report writer – where family report writer can have access to reasons for decision published in 2021
FAMILY LAW- PARENTING – where court considers father’s application for further interim time with child pending final hearing.Division: Division 1 First Instance Number of paragraphs: 46 Date of hearing: 28 January 2022 Place: Melbourne (heard via MS Teams) Counsel for the Applicant: Mr Whitchurch Solicitor for the Applicant: Macgregor Solicitors Counsel for the Respondent: Ms Stoikovska SC 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
Table of Corrections 22 February 2022 In paragraph 19 the words “is not” have been added to the sentence “Ms [Y’s] function to make a decision about whether or not the mother is entitled to relocate [Xs’] place of residence to [Country D]” to read “Ms [Y’s] function is not to make a decision about whether or not the mother is entitled to relocate [Xs’] place of residence to [Country D].”
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:
28 JANUARY 2022
THE COURT ORDERS THAT:
1.The matter be set down hearing on 26 April 2022 at 10.00 am for the purpose of receiving the further evidence which the parties have been given leave to adduce pursuant to paragraph 2 of the Order made on 22 April 2021, as amended by paragraph 4 of the Order made on 3 November 2021, being:-
(a)the health risks to the child X born … 2016 (“X” “the child”) and the mother of returning to Country D with the child to reside permanently;
(b)the ease of exercising international access across international borders during pandemic conditions in Country D; and
(c)relevant developments or events which have occurred since evidence was concluded on 23 December 2019.
2.Pursuant to section 62G(2) of the Family Law Act 1975 a full family report be prepared. For that purpose the parties and child X born … 2016 attend upon Ms Y(“Family Report Writer”) for the purposes of the preparation of a Family Report to be made available to the Court and the parties. The parties comply with all reasonable directions as to attendance upon the said Family Report Writer as and when required by the said Family Report Writer. Such report to be commenced on or about 17 February 2022 and be released by not later than…
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- AGLC
- Biondi & Koen (No 2) [2022] FedCFamC1F 64
- Case
- [2022] FedCFamC1F 64
- Decision Date
CaseChat Overview and Summary
The court had to decide on the suitability of the expert to prepare the family report and whether the family report writer should have access to the judge's reasons from 12 February 2021 for the assessment. The court considered the arguments of both parties and concluded that Ms Y was equal to the task of assessing and reporting on the events that occurred since December 2019 from the perspective of child development and parenting capacity. The court decided that Ms Y would prepare the family report, and while it was appropriate for her to have access to the judge's reasons, it would be up to Ms Y's discretion whether she chose to read them before, after, or both before and after the assessment process for the family report.
The court ordered that Ms Y would prepare the family report, and Ms Y would have the discretion to decide whether to read the judge's reasons before, after, or both before and after the assessment process. This decision aimed to ensure that the family report accurately assessed the impact of events since December 2019 on the case and provided the necessary expert evidence.
Orders
Orders of the court
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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
The father sought and obtained permission to reopen the evidence in the case to cover the impact of COVID-19 on the child’s ability to be returned to and reside safely in Country D and relevant events that have occurred since evidence was concluded on 23 December 2019. Single expert witness for preparation of family report After much to-ing and fro-ing between the parties and consequent delay in readying the matter for final hearing the parents had not been able to agree upon a single expert to prepare the family report. A family report is necessary because the parties are now able to adduce evidence of relevant matters which have occurred since 23 December 2019 and some such matters will inevitably require expert evidence including in relation to childhood development, parenting capacity and the like. I have decided that the family report in the matter will be prepared by Ms Y, psychologist. Notably all practitioners have stated that they have confidence in Ms Y’s ability. For the father’s part, Ms Stoikovska QC informed the court that Dr B, who has previously done a family report in the matter, is also available, but concedes that her availability is at least two months later than Ms Y’s availability. Ms Stoikovska submitted that an advantage of retaining Dr B, over Ms Y, is that Dr B is familiar with the matter and would recall the case. Dr B held assessment interviews on 15 January 2019 and 22 January 2019 with a home visit and handover observation on 23 January 2019. Dr B published her report on 5 February 2019 and it was affirmed on affidavit on 19 February 2019. The parties did not seek to cross examine Dr B at the final hearing in 2019 but, ultimately, I required that she be called to give some evidence about consequential orders and she did so on 23 December 2019. My questions were specifically directed to what arrangements would be in X’s best interest if she was to relocate to Country D. I am not convinced that Dr B would have a significant recall of this matter. In any event, it is important to note the task at hand. That is to assess and report on how events which have occurred since December 2019 impact on this case from the perspective of child development and parenting capacity. I am satisfied that Ms Y is equal to that task and have ordered accordingly.Should the family report writer have access to my reasons of 12 February 2021 of the assessment? Counsel for the mother and counsel for the Independent Children's Lawyer submitted that my reasons published on 12 February 2021 ought to be available to Ms Y when she undertakes her assessment for the family report. I agree with that submission but I have also considered the arguments of Ms Stoikovska for the father, who opposes Ms Y being able to have access to the reasons. I am not impelling Ms Y to read any of the materials with which she is provided including my reasons. It will be up to Ms Y, and within her discretion, as to whether she reads the reasons and, if she decides to read them, whether she reads them before or after the assessment process for a family report or before and after she conducts the assessment interviews.