Biondi & Koen (No 3) - [2024] FedCFamC1A 154

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Biondi & Koen (No 3) [2024] FedCFamC1A 154

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

Appeal number: NAA 135 of 2024

File number: MLC 2872 of 2017

Judgment of: AUSTIN, GILL & BAUMANN JJ

Date of judgment: 10 September 2024

Catchwords: FAMILY LAW – APPEAL – CHILDREN – Where the primary judge refused an international relocation application – Where the appellant asserts apprehended bias – Adoption of order identical to one of the parties’ orders sought not indicative of apprehended bias – Order made beyond power not indicative of apprehended bias – No finding of apprehended bias – Where the primary judge made an order placing restrictions on overseas travel for the child – Where the terms of the order applied to the child upon turning 18 years of age –Where there is no jurisdiction to make orders for a child once they have attained 18 years of age – Where the imposition of a $100,000 bond to travel overseas with the child was without reasons – Appeal allowed – Order varied as to international travel with the child – Costs certificates granted.

Legislation:
Family Law Act 1975 (Cth) ss 65H, 60CA

Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9

Family Law Regulations 1984 (Cth) reg 13

Cases cited:
Concrete Pty Ltd v Parramatta Design & Development Pty Ltd and Anor (2006) 229 CLR 577; [2006] HCA 55

Ebner v Official Trustee in Bankruptcy and Ors (2000) 205 CLR 337; [2000] HCA 63

Number of paragraphs: 38

Date of hearing: 27 August 2024

Place: Melbourne

Counsel for the Appellant: Mr Thistleton

Solicitor for the Appellant: MacGregor Solicitors

Counsel for the Respondent: Ms Swann

Solicitor for the Respondent: Landers & Rogers
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

ORDER MADE BY:

AUSTIN, GILL & BAUMANN JJ

DATE OF ORDER:

10 SEPTEMBER 2024

THE COURT ORDERS THAT:
1.The appeal is allowed.
2.Order 21 made on 6 May 2024 is varied such that it is in the following terms:
21. With the joint written agreement of the Mother and Father in the prescribed form, the Mother and Father be permitted to travel internationally with the child outside the Commonwealth of Australia during that parent’s time with the child pursuant to these Orders or as otherwise agreed in writing between the Mother and Father, upon the provision of:
(a) 30 days’ written notice to the other parent;
(b) Contact details for the duration of travel;
(c) Copies of the return tickets;

3.The appellant is granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in…

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 3)

Details

AGLC: Biondi & Koen (No 3) [2024] FedCFamC1A 154
Case: [2024] FedCFamC1A 154
Decision Date: 10 September 2024

CaseChat Overview and Summary

The case of Biondi & Koen (No 3) involved a dispute between Ms Biondi and Mr Koen over an international relocation application. The matter was heard in the Federal Circuit and Family Court of Australia, Division 1 Appellate Jurisdiction. The appellant, Ms Biondi, appealed against a decision of the primary judge who had refused her application for international relocation. Ms Biondi raised the issue of apprehended bias in relation to the primary judge’s decision, arguing that the adoption of an order identical to one of the parties’ proposals indicated bias. However, the court found that the adoption of an order and the making of an order beyond the court’s power were not indicative of apprehended bias. The court also examined whether the primary judge’s order placing restrictions on overseas travel for the child was within the court’s jurisdiction, particularly in relation to the child once they had attained 18 years of age. The court found that the court had no jurisdiction to make orders for a child once they have attained 18 years of age and that the imposition of a $100,000 bond to travel overseas with the child was without reasons.

The appeal was allowed on the basis that the bond requirement could be severed from the balance of Order 21. The court varied Order 21 to remove the bond requirement and the terms that applied to the child upon turning 18 years of age. This variation left Order 21 as requiring agreement in writing, 30 days’ written notice, contact details for the duration of the travel, and copies of return tickets. This variation was agreed upon by both parties as an appropriate remedy. The court also granted costs certificates to both parties under the Federal Proceedings (Costs) Act 1981 (Cth). The appeal succeeded on a question of law, and it was appropriate for the Attorney-General to authorise payments under that Act to both parties in respect of the costs incurred by them in relation to the appeal.

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

ORDER MADE BY:

AUSTIN, GILL & BAUMANN JJ

DATE OF ORDER:

10 SEPTEMBER 2024

THE COURT ORDERS THAT:

1. The appeal is allowed.

2. Order 21 made on 6 May 2024 is varied such that it is in the following terms:

21. With the joint written agreement of the Mother and Father in the prescribed form, the Mother and Father be permitted to travel internationally with the child outside the Commonwealth of Australia during that parent’s time with the child pursuant to these Orders or as otherwise agreed in writing between the Mother and Father, upon the provision of:

(a) 30 days’ written notice to the other parent;

(b) Contact details for the duration of travel;

3. The appellant is granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.

4. The respondent is granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the appeal.

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

Again, each party submitted that, by way of remedy, on the allowing of the appeal on this narrow basis, the bond requirement could be severed from the balance of Order 21.CONCLUSION The appeal will be allowed on the narrow basis in relation to Order 21 as identified above, with the remedy in the form of variation of the original judgment to sever those impugned aspects relating to the period after the child reaches 18, and to remove the reference to the bond. The severing of the impugned aspects was conceded by each party to act as an appropriate remedy to the deficits in Order 21. Neither party ultimately sought the removal of Order 21 in total. This will leave Order 21 as requiring agreement in writing (authenticated in accordance with reg 13 of the Family Law Regulations 1984 (Cth)), 30 days’ written notice, contact details for the duration of the travel and copies of return tickets. Accordingly, Order 21 will remain as an amelioration of the restraint on international travel, whilst providing adequate protection in respect of international travel as it remains subject to the agreement of both parties. This, in the context of the unimpeached balance of the judgment, accords with the best interests of the child (s 60CA of the Act).Costs certificates Neither party ultimately pursued costs against the other. The appeal has succeeded on a question of law. The appellant sought a certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), the respondent pursuant to s 6 of that Act. It is appropriate the Attorney-General authorise payments under that Act.

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

Appeal from:	Biondi & Koen (No 6) [2024] FedCFamC1F 294
Appeal number:	NAA 135 of 2024
File number:	MLC 2872 of 2017
Judgment of:	AUSTIN, GILL & BAUMANN JJ
Date of judgment:	10 September 2024
Catchwords:	FAMILY LAW – APPEAL – CHILDREN – Where the primary judge refused an international relocation application – Where the appellant asserts apprehended bias – Adoption of order identical to one of the parties’ orders sought not indicative of apprehended bias – Order made beyond power not indicative of apprehended bias – No finding of apprehended bias – Where the primary judge made an order placing restrictions on overseas travel for the child – Where the terms of the order applied to the child upon turning 18 years of age –Where there is no jurisdiction to make orders for a child once they have attained 18 years of age – Where the imposition of a $100,000 bond to travel overseas with the child was without reasons – Appeal allowed – Order varied as to international travel with the child – Costs certificates granted.
Legislation:	Family Law Act 1975 (Cth) ss 65H, 60CA Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9 Family Law Regulations 1984 (Cth) reg 13
Cases cited:	Concrete Pty Ltd v Parramatta Design & Development Pty Ltd and Anor (2006) 229 CLR 577; [2006] HCA 55 Ebner v Official Trustee in Bankruptcy and Ors (2000) 205 CLR 337; [2000] HCA 63
Number of paragraphs:	38
Date of hearing:	27 August 2024
Place:	Melbourne
Counsel for the Appellant:	Mr Thistleton
Solicitor for the Appellant:	MacGregor Solicitors
Counsel for the Respondent:	Ms Swann
Solicitor for the Respondent:	Landers & Rogers

ORDER MADE BY:	AUSTIN, GILL & BAUMANN JJ
DATE OF ORDER:	10 SEPTEMBER 2024