Biondi & Koen (No 5) - [2023] FedCFamC1F 180

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Biondi & Koen (No 5) [2023] FedCFamC1F 180

File number: MLC 2872 of 2017

Judgment of: BENNETT J

Date of judgment: 22 March 2023

Catchwords:
FAMILY LAW- PARENTING – Where pending appeal of substantive parenting orders which entitle mother to relocate child’s residence to Country D, the parents disagree on whether the child should be enrolled to attend school – where the mother seeks funding for new accommodation – where the mother seeks litigation funding.

FAMILY LAW – PARENTING- Where court satisfied that child should be enrolled and attend at school – where choice of school will be depend on location of child’s new accommodation – where parties have liberty to apply in the absence of agreement as to accommodation or identity of school.

FAMILY LAW – COSTS – distinction between litigation funding order and order for costs – costs reserved

Legislation: Education and Training Reform Act 2006 (Vic) s 2.1.1 and reg 72(1)

Division: Division 1 First Instance

Number of paragraphs: 35

Date of hearing: 14 February 2023

Place: Melbourne

Counsel for the Applicant: Mr Whitchurch

Solicitor for the Applicant: Macgregor Solicitors

Counsel for the Respondent: Ms Tiernan

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
ORDERS

MLC 2872 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS BIONDI

Applicant

AND:
MR KOEN

Respondent

and: INDEPENDENT CHILDREN’S LAWYER

order made by:

BENNETT J

DATE OF ORDER:

14 FEBRUARY 2023

THE COURT ORDERS THAT:
1.I reserve liberty to the parties to apply urgently by arrangement with my Associate – …@... - in relation to parenting orders including accommodation, school attendance and other matters pending appeal.
2.I refer the mother’s application for litigation funding in so far as it relates to funding for the pending appeal against my decision to the Appeal Registrar for the Southern Region for fixing or other disposition NOTING THAT the litigation funding application in relation to the proceedings before me remains on foot before me.
3.I reserve the costs of and incidental to this day and the applications which bring the matter to this Court (save for litigation funding for the appeal).

IT IS DIRECTED:
4.The document “Outline of Case of the Independent Children’s Lawyer” be marked Exhibit “A” and remain on the Court file.

IT IS FURTHER ORDERED THAT:
5.I will publish my reasons for decision subsequently.

AND THE COURT NOTES:
A.That the mother will investigate accommodation for herself and the child X and notify the practitioners for the father in due course of any property she selects.
B.The parties consent to me conducting direct judicial communication with Country D in relation to homologation of my final parenting orders currently subject to 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…

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 5)

Details

AGLC: Biondi & Koen (No 5) [2023] FedCFamC1F 180
Case: [2023] FedCFamC1F 180
Decision Date

CaseChat Overview and Summary

In the matter of Biondi v Koen, the Federal Circuit and Family Court of Australia addressed several contentious issues relating to the parenting arrangements of the child X, including schooling, accommodation, and litigation funding. The parents, Ms Biondi and Mr Koen, were in disagreement on whether the child should be enrolled in school or home-schooled, particularly as Ms Biondi sought to relocate permanently to Country D. The case involved a pending appeal against parenting orders that permitted Ms Biondi to relocate X’s residence to Country D.

The legal issues before the court included whether the child should be enrolled in school, the appropriateness of home-schooling given the statutory requirements, the necessity of new accommodation for the mother and child, and the validity of the mother's application for litigation funding. The court had to consider the statutory requirements under the Education and Training Reform Act 2006 (Vic), the best interests of the child, and the practicalities of implementing the orders.

Justice Bennett found that it was in X’s best interests to attend school in Australia to foster her social and educational development, despite the challenges she might face. The court rejected the mother's proposal for home-schooling due to procedural and regulatory impediments and the need for the child to experience a school environment. The court also noted that it was premature to specify the school until the mother's new residence was determined. Regarding accommodation, the court did not make a specific order but reserved liberty for the parties to apply if necessary. The court found the mother's application for litigation funding misconceived, particularly in relation to the appeal, and decided to reserve costs for further consideration. The court did, however, order that the child be placed on the Family Law Watchlist pending further order.

The court's decision highlighted the importance of considering the child's social, educational, and emotional development in making parenting orders. The court balanced the statutory requirements with the practicalities of implementing the orders and the parties' ability to cooperate. The decision also underscored the differences between litigation funding and costs orders, emphasizing the need for specificity in litigation funding applications.

Orders