FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Biondi & Koen (No 6) [2024] FedCFamC1F 294
File number(s): MLC 2872 of 2017 Judgment of: WILLIAMS J Date of judgment: 6 May 2024 Catchwords: FAMILY LAW – RELOCATION – Remittal for rehearing of the mother’s application to relocate to Country D – Where the mother seeks to return to her country of origin, but the father maintains it is the child’s best interest to remain in Australia – Where the mother is currently entirely dependent on the father for financial support – Where the court is satisfied it is in the child’s best interest to refuse the relocation application – Orders that the parents have equal shared parental responsibility of the child and the child spends significant and substantial time with the father Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CB, 60CC, 60CD, 60CE, 60CF, 60CG, 61DA, 65DAA, 67ZC
Cases cited: AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
A v A: Relocation Approach (2000) FLC 93-035; [2000] FamCA 751
Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Morgan & Miles (2007) FLC 93-343; [2007] FamCA 1230
Re Andrew (1996) FLC 92-692; [1996] FamCA 43
Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22
Taylor & Barker (2007) 37 Fam LR 461; [2007] FamCA 1246
U v U (2002) FLC 93-112; [2002] HCA 36
Division: Division 1 First Instance Number of paragraphs: 302 Date of hearing: 6-8, 20-21 December 2023 and 5-8, 21-22 February 2024 Place: Melbourne Counsel for the Applicant: Mr Whitchurch Solicitor for the Applicant: Macgregor Solicitors Counsel for the Respondent: Ms Swann Solicitor for the Respondent: Lander & 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
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
WILLIAMS J
DATE OF ORDER:
6 MAY 2024
THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
Parental responsibility
2.The applicant mother and the respondent father have equal shared parental responsibility for the child of the relationship, X, born 2016 (“the child”).
3.From the date of these Orders until 28 January 2025, the child live with the Mother and spend time with the Father during the Victorian gazetted school term for five (5) nights each fortnight, on days as agreed between the Mother and Father, in writing and in default of agreement:
(a)In week one, from the conclusion of school on Friday (or 12.00 pm noon if a non-school day) to the commencement of school on Monday (or 12.00 pm if a non-school day); and
(b)In week two, from the conclusion of school…
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- AGLC
- Biondi & Koen (No 6) [2024] FedCFamC1F 294
- Case
- [2024] FedCFamC1F 294
- Decision Date
CaseChat Overview and Summary
The court considered various factors, including the benefit to the child of having a meaningful relationship with both parents. Both parties agreed that the child should have a meaningful relationship with both of them. However, the court found that the mother had previously demonstrated behaviour that suggested she might hinder the child's relationship with the father if relocation was permitted. The mother's historical actions, including resisting extended overnight time, refusing weekend visits, and making allegations of abuse against the father, indicated a pattern of behaviour that could negatively impact the child's relationship with the father. The court was also concerned about the mother's financial dependency on the father, which could potentially influence her decisions regarding the child's best interests.
After thorough consideration of the evidence and arguments presented, the court concluded that it was not in the child's best interests to relocate to Country D. The court found that the child would benefit from remaining in Australia to maintain a meaningful relationship with both parents, particularly with the father. The court ordered that the parents have equal shared parental responsibility for the child and that the child spend significant and substantial time with the father. The court also issued an Airport Watchlist Order to prevent the child from being taken out of Australia without the father's consent, which would remain in effect until 2034.
The final orders included provisions for the child's living arrangements, time-sharing schedules, changeovers, school holidays, special occasions, medical information sharing, communication between parents, school participation, and international travel conditions. The court also referred all extant applications, including the mother's application for financial and property orders, to the Case Management Judge for future determination.
Orders
Orders of the court
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:
WILLIAMS J
DATE OF ORDER:
6 MAY 2024
THE COURT ORDERS THAT:
1. All previous parenting orders are discharged.
Parental responsibility
2. The applicant mother and the respondent father have equal shared parental responsibility for the child of the relationship, X, born 2016 (“the child”).
3. From the date of these Orders until 28 January 2025, the child live with the Mother and spend time with the Father during the Victorian gazetted school term for five (5) nights each fortnight, on days as agreed between the Mother and Father, in writing and in default of agreement:
(a) In week one, from the conclusion of school on Friday (or 12.00 pm noon if a non-school day) to the commencement of school on Monday (or 12.00 pm if a non-school day); and
(b) In week two, from the conclusion of school on Wednesday (or 12.00 pm noon if a non-school day) to the commencement of school on Friday (or 12.00 pm if a non-school day); and
(c) Any such further or other time as may be agreed between the parents in writing from time to time.
4. Commencing on 29 January 2025 and thereafter, the child’s time in week one of the two-week cycle referred to in paragraph 3 hereof, commence from the conclusion of school Thursday (or 12.00 pm if a non-school day).
Changeovers
5. For the purposes of the preceding Orders and all spend time arrangements pursuant to these Orders, all changeovers must occur at the child's school, unless otherwise agreed in writing between the parents from time to time.
School Holidays
6. For the purposes of time during the Victorian gazetted school term holidays and the Victorian gazetted long summer holidays, the preceding paragraph of these Orders be suspended, and the child's time with each parent is to occur as follows:
(a) For the short school term holiday periods, the child live with each parent on a equal basis as agreed between the parties in writing from time to time, and in default of agreement:
(i) In 2024 and each alternate year thereafter, with the Mother for the first half of the school term holidays and the Father for the second half of the school term holidays, with changeover to occur at 10.00am on Saturdays; and
(ii) In 2025 and each alternate year thereafter, with the Mother for the second half of the school term holidays and with the Father for the first half of the school term holidays, with changeover to occur at 10.00am on Saturdays;
(b) For the long summer holiday period, the child live with each parent for half of the long summer holiday period by agreement in writing from time to time, and in default of agreement:
(i) In 2023/24 and each alternate year thereafter, with the Mother for the first week and each alternate week thereafter, and with the Father for the second week and each alternate week thereafter, with changeover to occur at 10.00am on Saturdays; and
(ii) In 2024/25 and each alternate year thereafter, with the Father for the first week and each alternate week thereafter and with the Mother for the second week and each alternate week thereafter, with changeover to occur at 10.00am on Saturdays.
7. At the conclusion of the school term holidays and long summer holidays being the first Monday of the school term, the child's time is to recommence with each parent pursuant to paragraphs 2 and 3 of these Orders and for this purpose, it is intended that time will recommence where it left off prior to the school holidays.
Special occasions
8. The child's time with each parent during special occasions be as agreed between the Mother and Father in writing from time to time and in default of agreement, then as follows:
(a) With the Father from 3.00 pm Christmas Eve until 5.00 pm on Boxing Day in every year.
(b) The child spend time with the Mother on Mother's Day from 3.30pm the Friday prior to Mother's Day until the commencement of school on Monday (or 10.00am if a non-school day) if not otherwise in her care pursuant to these Orders;
(c) The child spend time with the Father on Father's Day from 3.30pm the Friday prior to Father's Day until the commencement of school on Monday (or 10.00am if a non-school day) if not otherwise in his care pursuant to these Orders;
(d) With the Father from 5.00pm on the Thursday immediately before Good Friday until 5.00pm on the Monday immediately following Easter Sunday in every year.
(e) Any such other times as may be agreed between the Mother and Father in writing from time to time.
Medical
9. The Father and Mother will notify the other, as soon as practicable, of any serious injury, illness or medical emergency affecting the child whilst in their respective care and provide all information and particulars to the other parent regarding the injury, illness and any healthcare professional or allied health professional treating the child, and both parents be permitted to attend the hospital or related medical appointment in the event of same.
Communication
10. The parties inform the other of any change of residential address at least fourteen (14) days prior to such change and an email address and/or mobile telephone details forthwith upon such change.
11. The parties facilitate the child contacting the other parent via telephone or FaceTime at any reasonable time that the child expresses a wish to do so and that phone calls be for no longer than 15 minutes.
12. The parent with whom the child is present between 4.30 pm and 5.00 pm on Sunday ensure that the other parent can communicate with the child by telephone and/or Facetime during that time.
13. Notwithstanding any Intervention Order that may be in place, the parties each be at liberty to communicate with each other via text message and/or other such digital messaging service to discuss parenting matters.
School
14. In relation to the child's school, AR School, or any other school agreed by the parties from time to time, the Father and Mother be and are hereby permitted and authorised to:
(a) Attend the school for the purpose of reasonable communication with the school staff;
(b) Attend any school attended by the child for the purpose of participating in any activity where parent helpers are invited;
(c) Request and receive copies of all reports, photographs and notices usually provided to parents, at their expense respectively (if any); and
(d) Attend all functions and activities, including extracurricular activities, including but not limited to parent teacher interviews (separately), school assemblies, school productions, presentation days, reading days and sports days and other like special events at the school/s or arranged by the school/s to which parents are ordinarily invited to attend.
15. Each parent be at liberty to provide a copy of these Orders to the child’s schools (or any of them) in order to give effect to these Orders.
16. Both parties be permitted to attend all extra-curricular activities that the child may be enrolled in and otherwise wish to participate in from time to time.
17. The parents forthwith do all things necessary to arrange for the child to engage with the school counsellor and speech therapist at AR School, in accordance with the behavioural plan developed by the school, and to arrange for the child to undergo a DET student assessment as recommended by the school.
Airport Watchlist Order
18. The Applicant Mother Ms Biondi born in 1981 and the Respondent Father Mr Koen born in 1981 their servants and/or agents be and are hereby restrained by injunction from taking or sending or attempting to take or send the child X born 2016 from the Commonwealth of Australia. This order ceases to have effect in 2034.
19. The Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these Orders.
20. IT IS REQUESTED THAT the Australian Federal Police place the name of the child on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the child from Australia in breach of these orders. This order ceases to have effect in 2034.
International Travel
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.
22. Within 24 hours of the making of these Orders, the Mother deliver the child's Australian passport to the Court for safekeeping.
23. Each parent do all such acts and things and sign all such necessary documents to obtain an Australian passport for the child and keep such passports renewed, with all passports for the child, including her Australian passport/s her Country D passport/s, and Country LL passport/s to be held:
(a) By the Registry of the Federal Circuit and Family Court of Australia, and not to be released to either party unless in accordance with the joint written consent of the parties or in accordance with these Orders.
Other
24. All extant applications, including (but not limited to), the mother’s application for financial and property orders in her (Further Amended) Initiating Application filed on 26 October 2023, be and are hereby referred to the Case Management Judge for fixing in due course as a defended hearing.
25. The Independent Children’s Lawyer is hereby discharged.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
An order for shared parental responsibility requires decisions about major long-term issues to be made jointly in consultation with the other person. Primary Considerations I will now address the primary considerations.The benefit to the child of having a meaningful relationship with both of the child’s parents Ordinarily, it is in a child’s best interests to have a meaningful relationship with both parents. In Mazorski v Albright (2007) 37 Fam LR 518, Brown J at [26], described a meaningful relationship as one “which is important, significant and valuable to the child” and the word meaningful is “a qualitative adjective, not strictly a quantitative one”. In Sigley & Evor (2011) 44 Fam LR 439, the (then) Full Court of the Family Court referred to the following propositions concerning s 60CC(2)(a): In this matter, both parties contend the child should have a meaningful relationship with both parents. If relocation is permitted, the child will obviously have a meaningful relationship with her mother as her primacy carer. If orders are made in accordance with the mother’s proposal, the child will live primarily in her care and if orders are made in accordance with the father’s proposal, she will remain in her mother’s primary care until the end of 2025 and thereafter, will live week about with each parent. The mother asserts the orders sought by her for the father to spend time with the child subsequent to relocation of her residence to Country D, enable the child to have a meaningful relationship with both parents. Conversely, the father contends the only way the child will continue to have a meaningful relationship with him is if she remains in Australia and spends significant and substantial time with him. The child will benefit from the involvement of each parent in her daily life and routine including:(a)taking her to school and extracurricular activities and assisting her with homework;(b)spending regular time together during term time, holidays, and special occasions; and(c)being immersed in the cultural life of each of her parent’s prospective heritage. The father is fearful that he may be deprived of a relationship with the child if relocation to Country D is permitted. Contrary to the mother’s oral evidence, the father contends she will refuse, neglect, or frustrate the facilitation and promotion of the child’s relationship with him, which is evident from the mother’s historical behaviour. The mother’s trial affidavit was replete with denigration of the father, including calling him a liar, deceitful, passive-aggressive, and manipulative. The father asserts since the commencement of litigation six years ago, the mother has demonstrated her reluctance to promote the child developing a meaningful relationship with her father, unless it is on her terms. Relevant examples are:(a)unreasonably resisting the introduction of extended overnight time between the father and the child. After overnight time was ordered on 23 December 2019, in March 2020 the mother sought orders to suspend or delay the commencement of overnight time;(b)refusing to consent to the child spending a whole weekend with her father. This is further referred to below;(c)alleging, either explicitly or by implication, that the father and his family members have verbally and physically abused the child. In late 2021 she took the child to the AD Hospital to investigate bruising, and encouraged the child in making disclosures that the bruising may have been caused by the father, which resulted in the involvement of child protection;(d)during the trial which commenced in April 2022, the mother continued to assert the child was not safe in the father’s care; and(e)the mother’s alleged comments to the child during the course of further child protection involvement in April 2022 and July 2022, where it was alleged the mother was overheard telling the child the father was “bad” and that she had secret plans to take the child to Country D.The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse