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 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Biondi & Koen has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BENNETT J:
On 21 December 2022 I granted a stay of final parenting orders made on 7 December 2022 concerning X (aged 7 years) pending the father’s appeal against those orders which, most significantly, permitted the mother to relocate X’s residence to Country D permanently. I dealt with some matters but adjourned to today the husband’s application (at paragraph 8 of his Application in a Proceeding) for the parents to do all acts and things necessary to enrol X at AR School or such other primary school as the mother may nominate. Since that hearing in December, the contentious matters have been expanded by the mother’s Response to the Application in a Proceeding, which was filed two days late, but which has been comprehensively addressed by the solicitors for the father. Apart from opposing the father’s application for school attendance, the mother seeks orders about her accommodation, payment of accounts and a litigation funding order.
In response to the father’s application for X to attend school the mother seeks that X be home schooled by her. The mother opposes the father’s application for school enrolment. She seeks that X be enrolled in home-schooling and that she will, "assume overall responsibility for the planning, implementation and assessment of [X's] education as required by the Department."
The mother seeks various ancillary orders such as payment of educational materials.
The father submits that, not only can X not be legally enrolled in home-schooling in the 2023 year, it is not in X’s best interests to be home-schooled by the mother. The father submits that X ought to have both parents be involved in her schooling and educational life and have the opportunity to socialise, learn, and participate with children of her own age with qualified educators in an appropriate educational environment. The father submits that this is in the child's best interests for her social, emotional, and educational development.
In the mother’s lengthy affidavit, she deposed that it would be in X’s best interests to be home schooled according to the Victorian Curriculum so as to have continuity between now and when the school year is set to commence in Country D. The mother further deposes that she has completed a qualification and has notionally engaged the services of AS Organisation, an organisation which assists parents with at home schooling, as well as other online resources.
The mother deposes:
According to [X’s] kindergarten teacher at the Transition Learning and Development Statement “[X] does need support especially in new environments and meeting new educators and friends. She needs comfort and reassurance and a safe trusting relationship built between her, the educator and the environment before she will feel comfortable to explore”.
The father’s written summary of argument is lengthy but informative and largely not contradicted by the mother. The father relies on s 2.1.1 of the Education and Training Reform Act 2006 (Vic), which, he says, requires a parent of a child between the ages of 6 and 17 to either:
(a)enrol the child at a registered school and to ensure the child attends the school at all times when the school is open for the child's instruction; or
(b)register the child for home schooling in accordance with the regulations and to ensure that the child receives instruction in accordance with the registration.
There are penalties that apply to parents who, without reasonable excuse, fail to comply with section 2.1.1 of the Education and Training Reform Act 2006 (Vic).
The father contends that it is neither appropriate nor feasible for X to be home for a number of reasons, including the following:-
(a)where a child is proposed to start home-schooling at the beginning of the school year, an application under sub-regulation 72(1) of the Education and Training Reform Regulations 2006 (Vic) must be submitted by 30 November in the year before the year the student is proposed to start home schooling. The mother has not done so.
(b)A child of compulsory school age who is the subject of an application under sub-regulation 72(1) must be enrolled at and attend a registered school until the relevant authority notifies the applicant of the authority's decision to approve the application in accordance with regulation 74. Accordingly, X must be enrolled and attend primary school pending any application for home schooling being processed. The mother has failed to facilitate X’s enrolment in mainstream school, despite the father's requests.
(c)An application to register a child for home schooling must be in the approved form and be accompanied by a proposed educational program comprising a learning plan that specifies when and where instruction will take place, and the subject matter that will be covered by the instruction during the first year of registration. The mother has not provided any proposed learning plan to date.
The father submits that the mother has not demonstrated what or how she proposes to teach X in line with the 8-mandatory curriculum areas in Victoria and the mother’s alleged teaching ability is inconsistent with how she has conducted her case vis a vis her written and spoken language skills.
The father argues that X will not suffer any detriment by attending primary school, even if only for 6 months or so in the event the father's appeal is unsuccessful. He says that a change in school will not be the most disruptive event in X’s life, should relocation be permitted. The most disruptive event will be separation from the father and his family. If the father’s appeal is successful, the child will be required to attend school pending the rehearing of this matter in any event.
The father submits that X ought to have the opportunity to socialise, engage and develop in an appropriate, educational environment and to be home-schooled would deprive her of socialising with children of her own age. The father submits that it is not healthy for the child to only interact with the mother at home for the majority of the week, and not be able to attend school with other children. X is isolated from peers, teachers and potential friends.
The father alleges that the mother continues to act unilaterally with respect to X’s education and schooling and without regard for the parties' equal shared parental responsibility (as ordered) or the father's role in the child's life. It is submitted that the mother’s disregard for the father’s parental responsibilities, disentitles the mother to being solely responsible for X’s schooling and educational matters. It is asserted that the mother has already:
(a)Engaged the home-schooling organisation, AS Organisation, without advising the father;
(b)Obtained a qualification in home schooling in 2021 without advising the father, the independent children’s lawyer or the court;
(c)Unilaterally ceased the child's kindergarten attendance on 19 December 2022 (and advised the father she was doing so only two weeks prior) and prevented the child from engaging in the Summer kindergarten program without consulting the father;
(d)Unilaterally completed and submitted the child's kindergarten 'Transition Learning and Development Statement' in November 2022 without allowing the father an opportunity to contribute to this document;
(e)Unilaterally changed the child's previous kindergarten enrolment from R Pre-school in Suburb Q (where she had been attending for almost one year) to Z Pre-school in Suburb QQ as this was closer to the mother and more convenient for her.
The Independent Children's Lawyer supports the father's position that X be enrolled in and physically attend primary school.
This is not the first occasion on which a determination about X’s education has been made. In my earlier decision about X going to kindergarten, published at [2022] FedCFamC1F 64, I observed at [28] that:-
If the mother is permitted to relocate, [X] will be immersed in [Country D] culture and be attending a [Country D] school. The mother’s evidence is that [X] excels academically. I take it that [X] has some good grasp of [languages spoken in Country D]. However, if the mother does succeed and is able to relocate [X’s] residence to [Country D], it seems all the more important that [X] be able to take memories of Australia with her which are extensive as possible. Those memories will include her experiences at kindergarten with other Australian children as well as being at home with the mother learning [languages spoken in Country D].
Those observations are still valid.
I am satisfied that there may be administrative or regulatory impediments to the mother home schooling. However, most of all, I regard school as an environment which X should be given the opportunity to experience in Australia. X may not experience school as a totally positive adventure because she has spent a great deal of time with her parents and as the focal point of their attention. I imagine that the authority of the teacher, interacting with other students and behaviours as simple as taking her turn may be challenging. However, challenges are an element of growing up. It is appropriate that she be exposed to other children, more language and school work. Continuing the socialisation of kindergarten will be beneficial for X.
I am satisfied that it is in X’s best interests to attend school. However, I accept that it is premature to specify the school until the mother knows where she and X will be living.
Mother’s application for new housing
The mother deposes that:
11. I seek an order that the father organise alternative living arrangements for [X] and myself in a furnished apartment ideally in the [Suburb QQ] area or [Suburb AT, Suburb AU, Suburb Q, Suburb AV] area until such time as his Appeal is decided. The tenant on the lease over the premises where currently [X] and I reside at, [Ms AW], is returning to Victoria with her partner and has requested that [X] and I vacate the premises. I have agreed to vacate the premises as I do not believe it is appropriate for us to remain living in the apartment and simply not suitable for 3 adults and a child. The father will need to organise the lease of an apartment of my approval and furnish this apartment. I own very little other than [X’s] bed accordingly, the father will need to furnish the apartment to the same standard as the current apartment [X] and I reside in. This should include air-conditioning, dishwasher, it has to also have a washing machine and drier (sic), so we do not need to pay to have our clothes washed and or dried.
12. My budget does not allow for anything beyond the bare essentials. [X] and I survive on $865 per week which includes Child Support paid by the father in the amount of $145 per week, $430 per week in maintenance also paid by the father as well as $290 per week received from Centrelink by way of special payment. I am unaware if the father has been able to claim family tax benefit for [X] and unless he volunteers this information, I have no way of checking. I also utilise a company car owned by the father’s company which is maintained by the father’s company I believe. The father also continues to maintain my health insurance in amount of approximately $160 per month and the father also pays for my psychologist fees however, he does not pay on time. He paid the last invoice from 17 November 2022 on 3 February 2023.
13. I have no means of arranging alternative accommodation. Accordingly, I require an order from the court for the father to make the all necessary and required arrangements including payment of the bond to provide [X] and I with suitable furnished apartment in the [Suburb QQ, Suburb AT, Suburb AU, Suburb Q, Suburb AV] areas as it is in this area that [X] and I have a small social network of friends.
14. My current tourist visa is due to expire [in mid] 2023 and the father will continue to be required to make all necessary and required payments to my immigrations lawyers, [UU Lawyers] to ensure that any visa application is undertaken and paid for.
The father deposes that he will pay for accommodation and other expenses but that the mother should select the accommodation. That seems sensible to me.
It was submitted by counsel for the father that no order is necessary. Notably, counsel for the mother did not proffer a comprehensive minute of order in relation to the mother selecting a property or series of properties and submitting details to the father. I will reserve liberty to apply. That liberty can also be used by the father to bring the proceedings back before me if, once the mother and X are in their new accommodation, there is inordinate delay in the mother arranging X’s enrolment at the school of her choice having regard to the location of their new place of residence.
The Father's Application for Family Law Watch-List Order
It has now come to the father's attention that the child has not been placed on the Family Law Watch- List. On 30 September 2019, Orders were made by this Honourable Court which placed the mother on the Watchlist, but not the child. The father understands that the mother remains on the Watchlist.
It is appropriate that X again be placed on the Family Law Watchlist pending further order.
The Mother's Application for Litigation Funding
The mother seeks a litigation funding order apparently for this proceeding and the appeal. The order sought is:-
That the Father pay to the Mother’s Solicitors a sum to be determined by this Honourable Court by way of Litigation Funding and such amount be equal to the amount the Father has paid to his solicitors to date in relation to this current Application in [a] Case.
The mother, who is represented by Macgregor Barristers and Solicitors, deposes:-
15. Macgregor Barristers and Solicitors are currently without funding. I am unable to fund these ongoing proceedings and the further preparation of documents in response to the father’s further application in a case not am I able to fund the appearance of counsel. My financial position was well established throughout the trial and counsel appearing on my behalf at the hearing of this matter in December 2022 raised the issue of litigation funding. My financial positions remains the same, I am unable to seek employment as I hold a Tourist Visa, my parents and extended family are unable to fund an international legal case and I do not have any financial resources to draw from as my life has been on stand by (sic) here in Australia for the last 7 years. I am unable to seek funding from Victoria Legal Aid as these lengthy and ongoing proceedings have exhausted the legal aid funding cap a couples times over.
The father opposes the mother’s application.
It appears to me that the mother’s application, for litigation funding, is misconceived.
I have no jurisdiction to order funding for the appeal. That aspect can go before the Appeal Division.
In relation to the mother’s legal costs for proceedings before me, the order sought by the mother would be the equivalent of an indemnity costs order plus some where indemnity costs are not even sought to be justified. There are qualitative and quantitative differences between the respective solicitors’ preparation and presentation of the case. There is no basis upon which I could assume that the mother’s costs are charged at the same rate as the father’s costs are charged. Similarly, I do not know if the father has actually paid any legal costs or disbursements for this current Application in a Case.
The proceedings before me are complete. The time for litigation funding has passed. The mother could have sought a costs order simpliciter, but she didn’t. I think it would be overly optimistic for me to assume that the parents will not come before me again. However, the proceedings in respect of which the mother seeks funding are not defined.
There was no minute of order or calculation of costs prepared and available to be handed up which could have been converted into a costs application. Litigation funding and costs orders are not interchangeable. The courts power to make a costs order derives from s117 whereas the basis for litigation funding may be s117 and other or additional powers of the court. The matters which inform the exercise of the court’s discretion for a litigation funding order are not necessarily the same matters as are relevant to an ordinary application for costs.
In this case, the failure to identify the power under which the court could make whatever order the mother seeks may be more apparent than real. Nonetheless, the mother ought to have specified her application with sufficient particularity for the father to know what application he faces in terms of the head(s) of power relied upon, the quantum and how the quantum has been calculated.
I will reserve costs.
Homologation
The mother alleges that the father is delaying, or failing to expedite, homologation of the final parenting orders in Country D. I am not satisfied on the affidavit evidence that is the case. However, it is common ground that some summary of my decision will be needed to apply for homologation and that the decision in its existing form is too long to translate.
I note that the parents and the independent children’s lawyer have consented to direct judicial communication between me and the judge(s) designated by Country D to the International Network of Hague Judges.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 22 March 2023
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