Biondi & Koen (No 3)
[2024] FedCFamC1A 154
•10 September 2024
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 2017FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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 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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Biondi & Koen has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, GILL & BAUMANN JJ:
THE APPEAL
This appeal is from a final parenting judgment in relation to the child of the parties. The major focus of the dispute at first instance was as to whether the appellant mother (“the appellant”) would be permitted to relocate with the child to live in Country D. The appellant was unsuccessful and relied upon an Amended Notice of Appeal filed on 14 August 2024 challenging both the judgment as a whole and a specific aspect of the judgment as it related to restrictions on overseas travel for the child.
At the hearing of the appeal a number of the grounds of appeal were abandoned, leaving two grounds for the appellant to pursue.
Ground 12 was directed to apprehended bias.
Ground 9 was directed to Order 21 which placed restrictions on overseas travel for the child.
As identified by Kirby and Crennan JJ in Concrete Pty Ltd v Parramatta Design & Development Pty Ltd and Anor (2006) 229 CLR 577 (‘Concrete’) at [117]:
An intermediate appellate court dealing with allegations of apprehended bias, coupled with other discrete grounds of appeal must deal with the issue of bias first. It must do this because, logically, it comes first. Actual or apprehended bias strike at the validity and acceptability of the trial and its outcome. It is for that reason that such questions should be dealt with before other, substantive, issues are decided.
Accordingly Ground 12 with be dealt with first.
Ground 12
The ground is as follows:
When combined with the adverse findings regarding the mother’s credit the combined effect of failure to fully evaluate the additional considerations together with the long period of the watchlist and the bond there is a reasonable conclusion that Her Honour did not bring an unbiased view to the enquiry and evaluation Her Honour was obliged to undertake.
Although articulated in a manner suggestive that the ground relied upon actual rather than apprehended bias, at the hearing, counsel eschewed the notion that the ground was directed beyond a reasonable apprehension of bias.
In Ebner v Official Trustee in Bankruptcy and Ors (2000) 205 CLR 337 (‘Ebner’), Gleeson CJ, McHugh, Gummow and Hayne JJ observed at [3] that “[f]undamental to the common law system of trial is that it is conducted by an independent and impartial tribunal”. Giving effect to the requirements that justice be both done and seen to be done, disqualification is required where “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide” (Ebner at [6]).
Two steps were identified in Ebner at [8] as necessary to determine such an issue. The first is the “identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits”. The second is the “articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits”.
The appellant identified one feature of the judgment as going to the issue of apprehended bias. That involved two aspects of Orders 18–21, Order 21 being the order impugned by the other remaining appeal ground.
Orders 18–20 dealt with the placing and retention of the child’s name on the Airport Watchlist until she reaches the age of 18 years. The orders made by the primary judge mirror those ultimately sought by the respondent at trial.
Order 21 is in the following terms:
21.Upon the expiration of the Airport Watchlist Order pursuant to the preceding paragraphs or in accordance 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;
(d)In the case of the Mother, the sum of $100,000 is to be paid prior to any travel to the solicitors for the Father to be held on trust pursuant to these Orders, with such sum to be released to the Mother upon the child's return to Australia and otherwise released to the Father if the Mother does not cause the return of the child to Australia in accordance with such travel arrangements.
Justice Callinan observed in Concrete at [179] that it is legitimate, in considering a claim of apprehended bias, to look to the reasons for judgment in addition to the course of the trial, and to examine them together. In this case, the appellant ultimately pointed merely to the terms of Orders 18–21, ignoring both the events during the course of the trial and the content of the reasons for judgment.
The first aspect was the contention that Orders 18–21 mirrored the orders sought by the respondent at trial with respect to the Watchlist and restraint on the child’s international travel. The second aspect was the contention that Order 21 was made beyond power.
It may be observed that this approach departed somewhat from the manner in which ground 12 was expressed. However, given that this was the ultimate expression of the appellant’s case in relation to apprehended bias, it will be assessed on those terms.
The appellant accepted that, although the primary judge adopted the respondent’s minute in respect of Order 18–21, other orders departed from those sought by the respondent. For example, the primary judge did not adopt the orders sought by the respondent that sought a transition to equal time.
It may be observed that there is nothing unorthodox about a trial judge adopting part or all of the orders proposed by a party. Here, the trial judge adopted some aspects of the orders proposed by the respondent and departed from others.
The appellant was unable to advance why the adoption of the respondent’s formulation of these orders, without more, pointed to the potential of the primary judge failing to bring an unbiased mind to the determination.
The appellant, however, sought to build upon that foundation on the basis that Order 21 also went beyond power as, on its face, it applied to the subject child beyond her eighteenth birthday (when the Airport Watchlist order is due to expire), and further, that there was an absence of reasons for the imposition of a $100,000 bond requirement upon the appellant.
These aspects of Order 21 are dealt with below. It may be accepted that both of these faults in the Order are made out. However, even when viewed in combination with the adoption of the terms proposed by the respondent, there was a failure on the part of the appellant to articulate how such was indicative of potential bias.
Neither of those aspects of Order 21 disclose more than error on the part of the primary judge. Considered either alone, or in combination with the adoption of the terms of Orders 18–21 by the primary judge, they do not point to either the fact of, or potential for bias. Falling into appealable error, without more, is not demonstrative of any reasonable apprehension of bias.
There is no merit in Ground 12 and accordingly it is dismissed.
Ground 9
Ground 9, which was directed to Order 21 as set out above, is in the following terms:
Her Honour did not give any or adequate reasons for the requirement for the mother to post a bond of $100,000.
Before moving to the specific complaint identified by Ground 9, a number of observations as to the scope and effect of Order 21 should be identified.
First, the Order is an amelioration of a restriction on international travel by the child. Whilst Orders 18–20 provide for the recording of the child’s name upon the Airport Watchlist until she is 18, Order 21 ameliorates the restraint upon international travel in circumstances of agreement, a matter accepted by the parties at appeal.
Secondly, Order 21 is expressed to have two conditions of application. The first is following the expiration of the Watchlist Order. Noting that the Watchlist Order expires upon the child reaching the age of 18, and that s 65H(1)(a) of the Family Law Act 1975 (Cth) (“the Act”) provides that a parenting order stops being in force upon a child turning 18, there is no power for the making of such an order.
Both the appellant and respondent submitted that by way of remedy, the appeal must be allowed in this limited respect and that this aspect of the Order could be severed from the balance of the Order.
The second condition of application was on agreement of the appellant and respondent. There was no suggestion that such an arrangement was beyond power, and both the appellant and respondent sought that there be the retention of the capacity of the parties to agree on international travel.
However, both of these conditions are supplemented by further requirements as set out at Order 21(a) – (d). Of those, only the condition at Order 21(d) was the subject of specific complaint. That condition requires the posting of a bond of $100,000 by the appellant as a prerequisite to agreed overseas travel.
No reasons were given for the imposition of the bond. Accordingly, the appellant’s claim by Ground 9 is made good.
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.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Gill & Baumann. Associate:
Dated: 10 September 2024
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