Biondi & Koen (No 4)

Case [2022] FedCFamC1F 965

Federal Circuit and Family Court of Australia

(DIVISION 1)

Biondi & Koen (No 4) [2022] FedCFamC1F 965

File number(s): MLC 2872 of 2017
Judgment of: BENNETT J
Date of judgment: 7 December 2022
Catchwords: FAMILY LAW- PARENTING – relocation to Country D - where mother seeks to return to her country of origin but the father maintains that the child should not be able to leave Australia in the foreseeable future- where mother is solely dependent upon father for financial support in Australia – where decision reserved after defended hearing in 2019 – where COVID-19 pandemic intervened and judgment remained reserved – where several interim applications are determined - where reasons for decision and draft orders handed down with request to parties to refine draft orders with detail – where draft orders not refined – where father makes application to re-open his case – where all parties given leave to re-open to adduce expert evidence in relation to COVID-19 issues and recent events – where further defended hearing held – where final reasons are delivered in four parts to incorporate earlier reasons – where the court is satisfied that it is in the child’s best interests to be able to relocate to Country D notwithstanding a curtailment of her relationship with the father – direct judicial communication through International Hague Network of Judges.
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61D & 68LA
Cases cited:

A & A: Relocation approach (2000) FLC 93-035; [2000] FamCA 751

B & B: Family Law Reform Act (1997) FLC 92-755; [1997] FamCA 33

U v U [2002] HCA 36; (2002) FLC 93-112

Division: Division 1 First Instance
Number of paragraphs: 429
Date of hearing: 18, 19, 20 & 23 December 2019; 27 March 2020; 10 December 2020; 8 February 2021; 6 April 2021; 22 April 2021; 3 November 2021; 28 January 2022; 26 - 29 April 2022 & 2 - 6 May 2022
Place: Melbourne (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
14 December 2022

In the citation number at the first page of the cover page “[…]” has been added to reflect the mother’s full name. ]
14 December 2022 Addition of court orders made on 7 December 2022 as amended pursuant to the slip rule on 12 December 2022 as underlined and annotated at paragraphs 1 and 26 of the orders. 
14 December 2022 Draft orders of February 2021 reasons which formerly appeared between paragraphs 22 and 23 now appear as an annexure “A”.
14 December 2022 Further catchwords were added to the cover page.

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

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AGLC
Biondi & Koen (No 4) [2022] FedCFamC1F 965
Case
[2022] FedCFamC1F 965
Decision Date

CaseChat Overview and Summary

In the case of Biondi & Koen (No 4), the Family Court was tasked with determining the best interests of a child, X, in the context of a relocation dispute between the child's parents. The mother sought to relocate with X to Country D, while the father opposed this move, preferring that X reside in Australia. The court was required to consider various factors, including the child's best interests, the parents' ability to provide a stable and loving environment, and the practical difficulties and expenses associated with the proposed relocation.

The primary legal issue before the court was whether the mother's proposal to relocate with X to Country D was in the child's best interests. The court needed to assess the respective cases of both parents, considering their ability to provide for X's physical, emotional, and educational needs. The court also had to weigh the importance of maintaining a relationship with the father against the potential benefits of the relocation, such as introducing X to new cultural experiences and environments. Additionally, the court needed to consider the practical difficulties and expenses associated with the father spending time with X if the relocation proceeded.

In reaching its decision, the court found that while both parents loved X deeply and had reasonable cases, the paramount consideration was X's best interests. The court noted that the parents came from different backgrounds, had no positive history together, and did not trust or understand each other. The court was particularly critical of the father's lack of insight and empathy towards the mother and his negative attitude during the proceedings. The court accepted evidence from a psychologist who assessed the mother's mental health, finding that while the mother experienced moderate symptoms of depression and anxiety, her capacity to parent X would not necessarily suffer if the relocation application was unsuccessful.

The court ultimately concluded that it was in X's best interests for the father to exercise time with X in Country D rather than requiring the mother and X to return to Australia. The court ordered equal shared parental responsibility and that X reside with the mother, but with the father having substantial and significant time with X in Country D. The court emphasised the importance of X being able to introduce the father to her life in Country D and the necessity for the father to absorb that environment. The court also noted the difficulties in predicting the future parenting arrangements and the potential for ongoing conflict between the parents.

The court's final orders reflected its determination that the father should have substantial and significant time with X in Country D, while X would reside with the mother. The court recognised the importance of maintaining a relationship between X and the father, balanced against the need to protect X from the ongoing conflict between the parents. The court's decision underscores the importance of considering the child's best interests in relocation disputes, taking into account the unique circumstances of each case.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In these reasons, a statement of fact is a finding of fact.EVIDENCEThe parents This is not a matter in which I am disposed to make findings about the credit of the parents. Each swore very lengthy affidavits of evidence in chief reciting the shortcomings and negative interactions each had with the other over their short relationship and thereafter. Each was cross examined but, with the exception of the father over holding X in late 2019, cross examination was not directed to the alleged unsatisfactory conduct of the other party. In the result, findings of fact about historical conflict are not productive or necessary in this matter. One or other parent may by buoyed by a finding of fact which is favourable to him or her. However, in my enquiry to determine which proposal is in X’s best interests, it is sufficient for my purposes to accept that each parent loves X deeply and believes that the outcome which he or she seeks is the best outcome for X. Otherwise, I am satisfied on the evidence that the parents come from entirely different backgrounds, they share no positive history together, they do not trust one another and nor do they understand one another. Each impressed me as giving evidence of events as best they recollect them. Their evidence was given honestly, bluntly and without finesse. Evidence of their attitude to one another had a guileless quality and was delivered in an unself-consciousness manner. Neither parent appeared concerned to present himself or herself in a conciliatory light nor with a view to being able to cooperate with one another in the future.Other witnesses who were required for cross examination On 12 December 2019, a psychologist Ms OO swore an affidavit on behalf of the mother attaching a report dated 9 December 2019. She was cross examined. Ms OO was very clear that these proceedings have caused a lot of stress for the mother. She maintained that the reason for her report was not to assist the Court with a report that was favourable to the mother. She maintained that she had conducted a mental health assessment of the mother and made findings about the mother’s mental health. Ms OO denied that the fact of her having seen the mother in her solicitor’s office, was indicative of her being an expert hired to produce favourable reports about the mother. She stated that she often does assessments in the mother’s solicitors’ office for other matters and it was beneficial for the client geographically as Ms OO’s office is in Suburb PP and the solicitors are in Suburb QQ. It was noted by counsel for the father that an interpreter was not used during the assessment and that Ms OO had only met with the mother for one and a half hours with no prior involvement with her. I accept her evidence which was that the mother displayed moderate symptoms of depression and anxiety and that the prospect of the mother having to remain in Australia highlights the risks of isolation, financial dependency, loss of career prospects, mental health problems and further exposure to family violence. I also accept the more encouraging description of the mother’s condition, given in cross examination by Mr AK which I have detailed later in these reasons at [161] and [162]. Ms OO agreed that, if the mother is unsuccessful with her application to relocate X, her capacity to parent X will not necessarily suffer.Other witnesses not required for cross examination

Decision

Reasons for decision

It is important that the father exercise time in Country D rather than requiring the mother and X to return to Australia over the next two years. It will be a richer experience for X to be able to introduce the father to elements of her life in Country D and it will be a necessary experience for the father to absorb that. Part IV: conclusion There will be an order for equal shared parental responsibility and that X reside with the mother. The paramount, but not the only, consideration on the issue of relocation is X’s best interests. Both parents have a case which is understandable and reasonable. Both parents are entitled to live where they wish to live. However, the extent to which the mother’s freedom of movement impinges upon X’s interests, the mother’s freedoms (as primary carer of X) must give way and a decision be made which, having regard to all of the evidence, is in X’s best interests. Frequently, the difficulty in a relocation case is the assessment of the environment and household to which the primary carer wants to take the child but in which the child is yet to live. Another difficult prediction for the court is what will happen in the event relocation is denied. That includes a prediction about the extent to which the parties will be able to successfully parent into the future after hard fought litigation. This litigation has been very hard fought and I have no doubt that each parent feels thoroughly depleted. In this case, I have the advantage of having seen the parties extensively through two defended hearings and numerous interim hearings over a total of 20 days. I am struck by the fact that findings and observations which I made in the reasons of February 2021 were not better addressed by either party in the second defended hearing. Neither appears to have modified their behaviour to any significant degree. The father presented as a smoother personality, his grooming has changed but his attitudes, in particular his attitude to the mother, remains unchanged. He has continued to be disregarding of her sensibilities and to the importance which she has in X’s life. The recent example of him considering but deciding that he could not afford an expenditure of some $2,000 to bring the maternal grandmother to Australia to visit (which he said had been within his contemplation) and then proceeding to spend hundreds of thousands of dollars more in legal costs in these proceedings is emblematic of his lack of priorities. He also failed to recognise the benefit to X of having the maternal grandmother visit, if she had been inclined to do so. My impression is that the father has little or no insight into the damage done to the mother by his callous comments and treatment of the mother during and after their relationship. In many respects his case was a negative case aimed at minimising the benefits of the mother’s relationship with X and trying to maximise the extent to which the mother could appear to be difficult. The father’s position is one that appears to me to be lacking in empathy towards the mother and, through the mother, to X. He has paid a lot of money for legal representation in these proceedings and it is frankly surprising to me that no one successfully counselled the father to at least appear to treat the mother with a higher regard than he has.

Ratio Decidendi

Legal Principle Established

The emphasis the experts give homologation in the superior courts in Country D is important and I will discuss it later in these reasons as part of my consideration of s 60CC(3)(e) – practical difficulties and expense of the child spending time with a parent.Expert witnesses in relation to the mother’s migration status A memorandum was written by Mr RR, solicitor and Migration Agent of SS Lawyers and Ms TT, accredited immigration law specialist and Migration Agent of UU Lawyers. The memorandum discusses the various visa options the mother has to stay in Australia. The father has been responsible for all expenses related to the mother’s visa applications. For the mother to remain in Australia, under a contributory parenting visa, the applications would cost the father approximately $60,000 being around $44,000 just for the visa and $15,000 for the visitor visa and legal expenses. The memorandum states at paragraph 15 that in applying for a visitor visa, it would be favourable to have the application for a contributory parent visa on foot. The mother was required to apply for the visitor visa before late 2019 when her current visa ran out, otherwise she would be required to leave Australia and apply for the visa offshore. This occurred on the first day of the final hearing. Neither Mr RR nor Ms TT were cross-examined. On the last day of the hearing, Ms TT gave evidence that, if the mother was to relocate to Country D with X, when she wanted to travel back to Australia to enable X to see the father, the mother would have to obtain a visa by showing that she has a purpose in coming to Australia and money available to her to support herself and X in Australia. Ms TT said that the visa costs around $150 and could be obtained in as little as 24 hours if the application was filled out correctly.RELEVANT HISTORY The mother came to Australia in early 2015 on an international student visa which expired in mid-2019. She travelled to Australia to learn English and later completed courses in management. The parents met in early 2016 when the mother began working in the father’s business. The father says they became close when the mother began cleaning his house to earn additional income. The parents formed a sexual relationship in early 2016 and the mother became pregnant. The mother in her affidavit deposes at [4]:…I told the father before we had sexual intercourse that I was not taking contraception and that we had to use condoms. When we first had sexual intercourse, I asked the father if he was wearing a condom. The father told me he was on the second occasion. On that date, the father told me that he had, in fact, not used a condom. Whilst the father did not deny this in his affidavit in response, in his oral evidence he stated that the mother knew he was not wearing a condom. The father says that the mother initially expressed a desire to terminate the pregnancy and that he told her he would support whatever decision she made. The father annexes text messages to his affidavit in reply sworn 24 September 2019 where the mother states “I don’t wanna have child” and being “happy” about abortion being legal in Australia.[14] The father solely met all expenses related to the pregnancy. The father says that the mother drank alcohol regularly during the pregnancy and was concerned about the baby when three or four months into her pregnancy, the mother had her stomach tattoed.[14] Father’s affidavit sworn 24 September 2019, 24.