Biondo & Biondo
[2023] FedCFamC1F 227
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Biondo & Biondo [2023] FedCFamC1F 227
File number(s): BRC 13955 of 2022 Judgment of: JARRETT J Date of judgment: 31 March 2023 Catchwords: FAMILY LAW – PARENTING – Where the respondent retained two children in Australia – Where the remaining children reside in Country B with the applicant – Orders sought for return of the children to Country B – Scandalous allegations made against the applicant – Where the allegations are unsupported by evidence – Importance of sibling relationship – Order for children to return to Country B Legislation: Family Law Act 1975 (Cth) Division: Division 1 First Instance Number of paragraphs: 89 Date of last submission/s: 29 March 2023 Date of hearing: 28 & 29 March 2023 Place: Brisbane Counsel for the Applicant: Ms Downes Solicitors for the Applicant: KLM Solicitors Counsel for the Respondent: Ms Varshney with Ms Chen Solicitors for the Respondent: Legal Aid Queensland ORDERS
BRC 13955 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BIONDO
Applicant
AND: MS BIONDO
Respondent
order made by:
JARRETT J
DATE OF ORDER:
31 March 2023
THE COURT ORDERS THAT:
1.The children W, born 2010 and Z, born 2017 live with the applicant.
2.The applicant is permitted to return the children's residence to Country B forthwith.
3.Whilstsoever the respondent resides in the Commonwealth of Australia and commencing with any school holidays enjoyed by the children at the conclusion of the 2023 school year, the children W and Z shall spend such time with the respondent as the parties may from time-to-time agree and failing agreement one half of each of their school holidays being the first half in even numbered years and the second half in odd numbered years.
4.The Australian Federal Police forthwith remove the following children from the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia:
(a)W born 2010;
(b)X born 2013;
(c)Y born 2015; and
(d)Z born 2017.
5.The respondent shall, and an injunction hereby issues requiring her to, forthwith withdraw the protection visa application(s) made to the Department of Home Affairs on behalf of W born 2010 and Z born 2017 or otherwise cause the inclusion of those children in her application to be reversed.
6.The applicant shall collect the children W born 2010 and Z born 2017 from Court Children’s Services, Level 3, Commonwealth Law Courts, Brisbane immediately following delivery of this judgment.
7.Otherwise, all outstanding applications and responses are dismissed.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
This case is about the best interests of at least two of the parties’ children. They have five in total. Their three boys, V (16 years of age), X (9 years of age) and Y (7 years of age) live with the applicant in Country B. The parties’ two girls, W (12 years of age) and Z (5 years of age), presently live in Australia with the respondent. The applicant seeks orders that W and Z live with him in Country B. The respondent seeks orders that they remain living with her in Australia. Initially, she sought orders in respect of all children, and then all except V. Now she has confined her case to the two girls presently in her care.
The evidence of the parties and the submissions made on their behalf focus the case on two main contentions. First is the respondent’s contention that the applicant, and perhaps Country B culture more generally, represents a risk of physical and psychological harm to the parties’ daughters from violence and sexual abuse such that they should remain in Australia for their protection. Second is the applicant’s contention that the children’s best interests demand that they be reunited with him, their brothers and other extended family in Country B so that their relationships with them, and their brothers in particular, are not irreparably damaged. There are some other subsidiary issues that I will deal with below.
BRIEF BACKGROUND
The respondent was born in 1980. The applicant was born in 1982. Each was born in Country B and is a national of that country. Neither party presently has a right to reside permanently in Australia.
The parties met in 2005. They were married in City C in 2006.
The parties’ children were born in 2006, 2010, 2013, 2015 and 2017.
The applicant is a businessman in City C. He has a business or businesses that operate in Country B, Country D and he comes regularly to Australia for business purposes. The evidence shows that between early 2018 and early 2020 he travelled to Australia a total of 35 times.
The respondent is a health professional by profession and conducted a practice in City C. It is unclear if she can practise as a health professional here in Australia because she deposes to her occupation as “technician”.
The evidence shows that the parties led busy lives. They had assistance with their children in the form of live-in nannies and other help. I formed the impression that the parties lived a very comfortable lifestyle in Country B.
The parties’ relationship began to deteriorate from 2018. The respondent alleges the applicant was having extra-marital affairs, which was the source of great conflict. Indeed, she repeated in cross-examination that the applicant was “gay” and that “there were three of us in the marriage”. She said in cross-examination that the third person she was referring to was the applicant’s personal secretary, Mr E who gave evidence before me. During the relevant time Mr E lived in the parties’ family home. This evidence was inconsistent with what she said at paragraph 236 of her affidavit of evidence-in-chief where she referred to the applicant’s cousin Ms F as the third person in the parties’ marriage.
The applicant denied that he had anything other than a professional relationship with Mr E. So too, did Mr E. The respondent’s belief that the applicant was “gay” was seemingly based upon her observation that the applicant and Mr E spent much time together, including in a room in the family home with the door closed. She inferred from this and seemingly nothing more, that the applicant and Mr E were in some type of homosexual relationship. Ordinarily that would be of small moment, but in this case it attracts some significance because homosexual acts between consenting males is a crime in Country B punishable by a term of imprisonment.
There is no evidence that the applicant and Mr E were in a homosexual relationship. Nor is there any evidence that the applicant had committed any adulterous affairs outside of his marriage to the respondent, including with his cousin Ms F. I formed the view that these were allegations that were made by the respondent so as to scandalise the applicant. So much appears from her statement in paragraph 236 of her affidavit of evidence-in-chief:
[Mr Biondo] has several affairs and a sexual psychopath abusing [Ms F] his cousin deprived her rights to school and freedom of communication in the family home. Therefore, our daughters [W] and [Z] are extremely vulnerable to sexual abuse without me in the house. (faithfully reproduced errors in the original).
There is simply no evidence to support the respondent’s allegations to this effect.
The respondent left the parties’ home in late 2020. She came back to the home from time to time, but this period marked the beginning of the parties’ separation.
The respondent commenced family law proceedings in Country B some time in 2021. The parties entered into consent orders in relation to those proceedings in late 2021. The orders provided for Z to live with the respondent and the four eldest children to live with the applicant. The four eldest children would spend time with the respondent from 9:00am Saturday to 9:00am Sunday each week. Z would spend time with the applicant from 9:00am Sunday until 12:00pm Monday each week. Those orders were expressed to be in force for a duration of 3 months.
Upon the expiry of those orders, the respondent moved back into the family home in early 2022.
The applicant applied for divorce in Country B the following month.
The parties entered into a Permanent Protection Order against each other by consent in mid-2022. Despite the expression of permanency, these orders are due to expire in mid-2023 after a period of one year. This order provided some general terms restraining the parties from bad behaviour towards each other, as well as preventing forceful eviction.
As a result of entering the consent order, the applicant withdrew his application for a divorce in mid-2022 and the parties attempted to reconcile.
In mid-2022, the applicant applied for tourist visas for the respondent, W and Z to visit Australia to celebrate Z’s birthday later in 2022. Those visas were granted the following month. The respondent and the two children subsequently travelled to Brisbane with the consent of the applicant.
The circumstances in which the respondent came to Australia at that time and what occurred thereafter require more detailed consideration, but for present purposes it is sufficient to record that the respondent, W and Z have remained in Australia since that time.
These proceedings were commenced on 7 November, 2022 and on 16 November, 2022 the parties attended upon Court Child Expert Mr G for preparation of a family report. That report was released on 24 November, 2022.
In late 2022 the respondent applied for a Protection visa. She included W and Z in her application. It is yet to be determined and in the meantime, the respondent and the children have been granted bridging visas.
A word about the evidence
Generally speaking I found that the applicant gave his evidence in a forthright manner. He generally directed his answers to the questions put to him and his answers appeared spontaneous and not preceded by long pauses. He made concessions when appropriate.
His affidavit material provided some particularity in respect of important events but also suffered from the same difficulties that plague the respondent’s affidavit material.
The respondent needed to be reminded to respond to the question asked of her many times. Her initial answers were often not responsive but demonstrated her urgent desire to have the Court hear her narrative. When providing responsive answers, her answer was often preceded by a long (up to 20 seconds on more than one occasion) pause. She made concessions grudgingly and when there was seemingly no alternative. Additionally, in cross-examination she gave evidence that was inconsistent with what she had said in her affidavit of evidence-in-chief and to other in positions of authority (such as police) on prior occasions. I have referred to the important inconsistencies later in these reasons.
The respondent appeared anxious to make scandalous allegations against the applicant about corruption and violence, without any evidence to support her allegations. Specifically she alleged that:
(a)the applicant’s staff are armed with firearms, and the applicant has often used his staff to harass, intimidate, assault and threaten her;
(b)She was informed that the applicant had put a “price on my head” of 5,000 in Country B currency;
(c)the applicant’s brothers, Mr H and Mr J, live in Brisbane and K Region and she is “concerned” that they have been paid by the applicant to arrange to have her killed;
(d)a person called Ms L, who is a member of the respondent’s family, had been paid by the applicant to harass, assault and intimidate her, “I believe that [Mr Biondo] paid [Ms L] to physically assault me at my father's funeral [in] 2021. [Ms L] physically punched me […] on this occasion”;
(e)the applicant has threatened (presumably her) that she will be killed, and the parties’ eldest daughter will be sexually abused and enslaved by members of his family;
(f)the applicant “has always threatened that he would have me killed if I return”;
(g)the applicant bribed police and other officials;
(h)the applicant raped the respondent in 2020;
(i)the applicant was able to control the police and pay them to harass the respondent and to avoid prosecution;
(j)the applicant was able to corrupt judges;
(k)the applicant had paid the respondent’s own brother to hurt or kill her; and
(l)that he is a “warlord” and has committed “war crimes”.
None of these allegations are attended by any particulars or evidence that would permit a finding that the allegations are true. That the respondent is prepared to make such allegations without giving any proper particularity to the allegations and without any evidence to support them, does her no credit.
The approach taken by the respondent and those who have drawn and/or settled her affidavit, to her evidence is to make allegations, unsupported by evidence. This approach is typified, for example, by the following paragraphs from her affidavit filed on 16 March, 2023:
325. [Mr Biondo] is breeding mobs, keeps [weapons] at home and is practising sexual perversion in a family home. In my previous affidavits I was uneasy to expose this information, but the Court should know. [Mr Biondo] is not a normal thinking man. He is abusive, corruptive and a pervert. My children are not safe with him. He is hoping to remove the natural mother of the children and have the kids grow up with perverts.
…
327. [Mr Biondo] kept [weapons] and gangs in the Family home.
328. He [attacked V] with [household items].
There are no particulars given of just about any of the allegations the respondent makes.
The respondent’s affidavit was either prepared or settled (or both) by a lawyer from the “Women’s Legal Service”. So much is disclosed at the conclusion of the affidavit. Contrary to the requirements of r 8.15(1)(d) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 the name of the solicitor is not disclosed.
The Australian Solicitors’ Conduct Rules set out the standard of conduct expected of Australian solicitors. In particular, rules 21.3 and 21.4 provide:
21.3 A solicitor must not allege any matter of fact in:
21.3.1 any court document settled by the solicitor;
21.3.2 any submission during any hearing;
21.3.3 the course of an opening address; or
21.3.4 the course of a closing address or submission on the evidence,
unless the solicitor believes on reasonable grounds that the factual material already available provides a proper basis to do so.
21.4A solicitor must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the solicitor believes on reasonable grounds that:
21.4.1available material by which the allegation could be supported provides a proper basis for it; and
21.4.2the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it is not made out.
The allegations I have outlined above are all without any foundation in the evidence of the respondent, or otherwise. That such serious allegations have been made in an affidavit settled by a lawyer is not just a disgrace, it is prima facie a clear breach of rule 21.3 and 21.4 of the Australian Solicitors’ Rules. The administration of justice is damaged by the failure of lawyers to observe the Australian Solicitors’ Conduct Rules in the way that appears to have been done in this case. The interests of the client and the interest of the public in the due administration of justice are not served.
CONSIDERATION
The attitude of the applicant towards the respondent is different to the attitude of the respondent towards the applicant. The respondent is openly hostile towards the applicant whereas the applicant is seemingly conciliatory in his approach to the respondent – described by their son V as “weak”.
I have the benefit of a report prepared pursuant to s 62G of the Family Law Act 1975 (Cth) by Mr G, a social worker employed as a family consultant. Mr G sums it up best:
70. [Mr Biondo] reported that the mother has said all “Kinds of things” about the influence he has over others including their children. He said the mother has her “Own” relationships with family members and it can be seen from his interactions with the children that he does not have control over them. [Mr Biondo] suggested that the “Big statements” the mother makes about others are likely to “Scare” people and damage her relationships. He said she has difficulty “Controlling herself” and can take her issues out on others.
71. [Mr Biondo] reported that the mother is a “Good person” though her “Motives have changed”. He said that he does not “Blame” her for the current situation, however, and suggested she has had a “Different upbringing”.
As for the respondent, she is generally very critical of the applicant. Mr G records:
74. [Ms Biondo] reported that she has been “Bought off” by the father and is now viewed by her family members as “Property of the man”. She said it was “Humiliation for me” being seen living separately from the father.
75. [Ms Biondo] indicated a belief she “Always thought there was something wrong” with the father though he “Totally refuses counselling”. She said “Despite the abuse” she experienced she went back to the father “24 times” and “Never asked for a divorce”.
76. [Ms Biondo] reported that she tried to co-parent with the father during the period they were separated though the father would say the four eldest children were refusing to spend time with her. She said the children are on their own “Most of the time” and [V] is addicted to video games with swearing. [Ms Biondo] indicated that the children typically eat “Fast food” whilst in the father’s care
Despite the extraordinary level of vitriol directed by the respondent to the applicant in her evidence (both written and oral), she told me in submissions (through her counsel) that she accepted that the children would benefit from a meaningful relationship with the applicant. That submission seems entirely at odds with her case more generally that the applicant conspires to have people murdered, is a rapist, is a sexual pervert and deviant, is corrupt and has corrupted others and has such a poor attitude towards women that the children need to be protected from him. I accept her concession that she considers that these children (the boys as well) will benefit from a meaningful relationship with the applicant.
On the other hand, I am satisfied that the applicant genuinely considers that the children will benefit from a meaningful relationship with the respondent. The evidence satisfies me that the applicant is far from being the type of person described by the respondent. On her account, he is a successful businessman who has been able to provide well for his family and, according to her own evidence, spoil the children. Whilst she is critical that his work and business interests have taken him away from the family regularly and frequently, there is no suggestion that giving these children the opportunity to observe the applicant’s drive and work ethic is anything other than a good thing.
Each of these parents have much to offer their children. Both are accomplished individuals who are, with respect, intelligent and articulate. I have no doubt, and I find, that all of the parties’ children, including the two who are now specifically the subject of this application will benefit from an ongoing meaningful relationship with each of their parents.
The respondent argues that the children need protection from harm by reason of the applicant’s violence. Apart from the respondent’s un-particularised allegations that the applicant has attacked V with a household item and organised for some of his “mob” to beat V, (allegations which I do not accept) there is no allegation or evidence that the applicant has ever harmed the children physically or being violent to them. Apart from some very general evidence that the applicant has threatened harm to V, there is no suggestion and no evidence that the applicant has ever threatened to harm the children.
The parties accept that there has been physical violence between them. I do not accept the respondent’s versions of these incidents. I prefer the evidence of the applicant generally. More particularly:
(a)I prefer the applicant’s version of the incident that occurred in early 2020 wherein the respondent physically attacked and injured the applicant. The respondent was cross-examined about her evidence concerning this incident and her claim that the applicant had punched her and her evidence was found wanting. I reject her allegation that the applicant “raped” her;
(b)I do not accept the respondent’s evidence that she was assaulted by the applicant’s cousin Ms M in mid-2020;
(c)I do not accept that the applicant suborned the respondent’s brother Mr N to assault or even kill her; and
(d)I do not accept that the applicant punched the respondent in the face on at least five unspecified occasions as she alleges.
I accept that on some of the occasions when there was violence between the applicant and the respondent, the children were present. In particular, I am satisfied that three of the parties children saw the aftermath of the respondent’s attack on the applicant in early 2020.
Mr G identified family violence between the parents as a risk factor for these children. He concluded based upon the information given to him that when these parties were physically present with each other there was a risk of violence between them and so, he considered the best way to manage that was to reduce the opportunity for these parents to be together in the presence of the children. His recommendations include recommendations about how changeovers ought be conducted (irrespective of where the children might live) so as to reduce the risk of the children experiencing violence between their parents.
The animosity that the respondent clearly harbours towards the applicant has a real potential to cause emotional harm to these children. It is frankly inconceivable that she could genuinely hold the beliefs that she holds about the applicant and to which she has sworn in her affidavit of evidence-in-chief, and at the same time consider that it is in the best interests of these children for them to have a relationship with him. The incongruity between those two positions is in my view, on the evidence, irreconcilable given the view that I have taken about the credit-worthiness of the respondent and the veracity of her evidence generally. The conclusion I am driven to is that her stated beliefs and concerns expressed in her evidence-in-chief are not genuine but are contrived. The alternative is to consider that her view that the children will benefit from a meaningful relationship with the applicant is contrived, but as I have earlier stated, I accept that that is a genuine statement of her belief.
The respondent advanced the case that W and Z are at an unacceptable risk of sexual harm. The case in this respect, changed over the course of time. Her written evidence and her statements to Mr G suggest that the children were at risk of such harm from other people, (perhaps those living in the applicant’s household) but not the applicant. However in cross examination she clearly said that the applicant too, would rape, sexually assault and enslave W if she lived in Country B.
At a broader level, the respondent’s case is that there is an unacceptable risk of harm to the parties’ daughters by reason of the culture of misogyny that exists in Country B. I cannot accept that case. I have had regard to the “cultural report” relied upon by the respondent and prepared by Ms P. However, I am not prepared to give that report any weight. The author’s qualifications are not apparent although she swears that she holds relevant occupational qualifications in Australia, helps manage a Country B – Australian cultural group and it appears tolerably clear that she was born in Country B. Beyond that, her qualifications to speak to the matters set out in her report are unstated. Some of the statements made by Ms P are referenced to other material (such as a Human Rights Watch World Report 2021) but other statements are unreferenced. What is apparent from Ms P’s referenced material is that in the two examples of serious violence towards women referred to in her report, the perpetrators on each occasion were dealt with according to the criminal justice system.
The respondent’s evidence is that W has expressed to others that she is scared to return to Country B and that she would prefer to stay in Australia. In that respect the respondent relied upon evidence from Ms Q, a children support worker at the refuge at which the respondent and her two daughters lived in late 2022. Ms Q’s evidence was not challenged in cross-examination. She said that:
(a)In late 2022 she was engaged with W and Z when W said words to the effect of “I don't feel safe in my home or county, because of all the violence I see”; and
(b)W told Ms Q that both she and her sister have difficulty sleeping (although she does not say where that was – in her own country or in Australia);
(c)Two days later, whilst another support worker called Ms R played a board game with W and Z, W asked numerous queries regarding the safety of her current location, asking “fear-based questions” surrounding potential emergencies. W said words to the effect of “I feel safe here at refuge. It is very different to my home where I do not feel safe. In my country you cannot even walk safely in the streets. There is no peace in my home”.
However, in the course of his interviews with the children, none of them expressed to Mr G any fears about returning to Country B or that they felt unsafe there. Indeed, W told Mr G that her father’s care was “peaceful” and that she enjoyed going to parks and on holidays with him. She told Mr G that she feels safe with her father and does not get into trouble although she did not always like it when there were lots of people in the family home including her “Uncles and aunties”. Z told Mr G that “she loves her “house” in [City C]” something I consider she would be unlikely to say if she felt unsafe there. Showing insight beyond her tender years, she told Mr G that “it was safe living with her mother and father”. She said “Dad and mum will fight” and the children would “run away from them” and return later to go to sleep.
I have had regard to the evidence of Ms Q, but I have determined to give it little weight given that the relevant conversations took place when the children had been in their mother’s care since they came to Brisbane to the exclusion of the rest of the family
Whilst I accept that individual expressions of desire and intent must be seen within the context of the cultural framework within which they are expressed, I do not consider that the applicant here would willingly permit, let alone engage in, the sexual or other abuse of his children. It was the respondent’s own evidence in cross-examination that his children were the centre of his world and that everything he did, he did for them. It was the respondent’s evidence that the applicant has a significant income available to him which has been able to find the parties’ lifestyle in Country B. There is no suggestion that he would not deploy his resources to keep his children safe. Indeed the evidence tends to suggest that that is exactly what he has done. For example, the respondent complains that the applicant has placed her under surveillance by placing surveillance devices in a motor vehicle and installing CCTV in her business premises. Her evidence about that was disingenuous because it emerged in cross-examination that she drove a company car provided by the applicant and all of his company cars had GPS surveillance. Moreover, is evidence that he installed CCTV into the broader business premises in which the respondent’s practice was situated for security reasons was not challenged.
Thus, notwithstanding what the respondent contends are broader concerns with culture and society in Country B, I am satisfied that whilstsoever these children remain in the care of one or other of these parents and they are living in Country B, their parents will take all steps available to them to protect them from sexual or other abuse.
Of some significance are also the statements made by X to Mr G that he feels safe with his father and there was nothing that he did not like about his care. Y too, reported feeling safe in his father’s care. Neither child expressed a concern about experiencing violence in Country B.
I find that there is no need to protect these children (and specifically the parties’ daughters) from a risk of harm by reason of being exposed to abuse neglect or family violence beyond that which is identified by Mr G.
W told Mr G that it was peaceful living with her mother in Australia. She said that she would like to be able to live in Australia. However she told Mr G that she was struggling because she was not able to see her siblings. She told him that she had been used to being able to see her siblings every time she woke up in the morning.
The evidence demonstrates that W and Z have good relationships with each of their parents. It is clear that they each love both of their parents. When they have the opportunity to spend time with the applicant for the purposes of Mr G’s interviews, both W and Z were pleased to see him. Indeed, Mr G observed Z to sprint to her father and jump into his arms. W was clearly happy to see him as well. Both children told the applicant that they missed him. W was very keen to spend time with the applicant and asked him to give her his telephone number so she could speak to him any time she wanted.
Significantly, it is clear that W and Z, but W in particular, have significant relationships with their brothers. Their oldest brother, V was present in Australia for the purposes of the interviews conducted by Mr G and the two younger boys participated by video link. V was anxious to see his sisters. W did not have the opportunity to speak to her brothers and during the course of her observation session with the applicant, she asked him to make contact with them on the telephone so that she could talk to them. These sibling relationships are clearly very important to W.
The respondent criticised the applicant’s failure to spend any time with the children W and Z when he has been in Australia in recent months. His explanation for not attempting to see the children was that there was an order made by this Court in place which provided for him to have electronic communication with them and he did not think that any other contact would be allowed. I have difficulty with his explanation because he has, at all times, been legally represented. I do not consider, however, that this failure to attempt to spend time with the children as identified by the respondent indicates any lack of interest, concern or engagement with them on his behalf.
V was interviewed by Mr G. From what he told Mr G, it is clear that V considered his mother to be the aggressor in his parents’ relationship. He considered that the applicant was weak because he would try and resolve issues with the respondent. He told Mr G of an episode when his mother attempted to attack him with a knife.
Four out of the five children described to Mr G that the applicant and respondent would fight. W described that as a daily occurrence. She told Mr G that V would gather the siblings in his room or take them into the backyard. She thought that V had been traumatised by the horrible things the parents had done (although she did not elaborate on that). W told Mr G that her parents would yell, bang and break things and that it was mostly her mother who got very angry. She said that her father did not break things.
The observations of V and W to Mr G are more consistent with the general tenor of the applicant’s evidence about the nature of the parents’ relationship than that of the respondent. It is uncontroversial that when the applicant and the respondent were together they would argue and fight. The children’s observations are that it was the respondent who would become more physical, attempting to stab V once, and breaking things. These observations are consistent with the view that I have formed that generally speaking the respondent’s evidence is unreliable.
There is a history of protection orders being issued in respect of each of these parties. Some have been issued in Country B and there was a police protection notice issued in Australia at the behest of the respondent against the applicant. Whilst I have taken those facts into account, in my view, they are of little weight in the present proceedings. The evidence demonstrates that for the purposes of securing her own ends, the respondent will withhold information from the relevant authorities. The circumstances leading to the issue of the police protection notice in Australia demonstrates that.
Contrary to her affidavit evidence, in cross-examination the respondent said that when she left Country B she had no intention of returning from Australia. Her affidavit evidence is to the effect that the trip to Australia was to be for a few days to go shopping for Z’s birthday. She was to return to Country B in late 2022 but did not do so.
Two days after the expected return date, the applicant arrived in Brisbane with V, X and Y, but was unable to locate or contact the respondent or their daughters. The applicant was subsequently served with a Police Protection Notice the next day.
In her affidavit of evidence-in-chief the respondent swears:
67.[Mr Biondo] alleges that I "invited" him to join us and that we were not yet separated. In response to this I say this not true. In the weeks leading up to our travel here, [V] told me several times that he overheard [Mr Biondo] making plans with his sister [Ms S] about schools in Australia. When I asked [Mr Biondo] to discuss children schoo1 for 2023, he refused to discuss with me.
However, the applicant’s evidence and cross-examination establishes clearly that this evidence is false. The respondent accepted in cross-examination that in the context of a long argumentative text message conversation in late 2022, the parties exchanged the following text messages:
(R)Come here and spend quality time with your wife n daughters
(A)Hate your lies and pretend. It will catch up with you soon. Careful your kids are watching…
(R)that too hard to ask?
Your business travels are priorities… But us?
Useless reasoning with a heartless man
(A)I work hard so that you can have good life… You know that. Time is money. I try to balance job and family… You still ungrateful and still cannot accept this life.
The best thing you can.is stop pretending and look for your sons and daughters school… You owe to them
(R)Both husband and wife check schools out for kids…
Looking forward excuses not to be with me in Brisbane
It is uncontroversial that the applicant then caused a deposit of 5000 in Country B currency to a bank account controlled by the respondent. Somewhat ungraciously, she questioned the bona fides of the transfer but accepted in cross-examination that she received the funds and they were unsolicited. She also accepted that the applicant sent a further message asking her about accommodation arrangements and whether he there was a need to rebook for an extended stay.
The messages in the conversation which begin at 5:40am show the respondent to be angry with the applicant for a number of reasons. The language used by her and her tone is abusive. The applicant’s replies, at times angry, were often conciliatory and less inflammatory. At worst, he describes her as a liar. Interestingly, he suggests that the respondent is “looking for ways to seek asylum citizenship” and then goes on to suggest that perhaps the respondent should use her profession (presumably to emigrate to Australia) and stop defaming he and the children (presumably by suggesting that they too, are refugees). The conversation is interesting because it was not until more than a month later that the respondent made her application for a protection visa. It was plainly the matter of some discussion between them although perhaps not reflected in the text messages.
As I have already indicated, in late 2022 the applicant was served with a police protection notice. The notice contains the information provided to the police by the respondent for the purposes of obtaining the notice. Significantly, the following information was provided by the respondent to the police (the reference to AGG is a reference to the respondent in these proceedings and the reference to RESP is a reference to the applicant in these proceedings):
On […] 2022 the AGG informed the RESP that she was not returning to [Country B] via mobile phone. The RESP has become angry and verbally abusive toward the AGG on the phone stating that he would come to Australia and find her.
In cross-examination, counsel for the applicant carefully established that all of the communication between the applicant and the respondent whilst the respondent was in Australia was via a telephone and text messaging application called WhatsApp. Cross-examination also established that the WhatsApp records could be altered by the parties by the deletion of text messages but the records of telephone calls (whether completed or unanswered) could not be altered. The records put to the respondent by the applicant’s counsel demonstrated that there was no telephone call between the parties on the day on which she alleged the applicant threatened to come to Australia and find her. When challenged with this evidence in cross-examination, the respondent changed her evidence to suggest that the relevant telephone call took place on the previous day and perhaps via some other means. I formed the view that her evidence about this was patently false.
Moreover, her information to police that:
On […] 2022 the RESP has told the AGG to bring their daughters to an apartment complex in Brisbane stating that he had flown to Australia with their three sons.
was also false and not reflected in any messages or telephone calls between the parties.
The applicant attended Suburb T Police Station in late 2022 to give a statement. The police subsequently contacted the respondent and told her they would not be continuing domestic violence proceedings on her behalf. The applicant was told by police he could return to Country B.
Later that night, the applicant came across the respondent at a shopping centre. W and Z ran up to the applicant and greeted him with hugs. The applicant alleges that he left shortly thereafter because the respondent was filming him and the children. The respondent’s evidence was that she was not filming and the applicant ran off for no reason. I accept the applicant’s evidence in this respect. I find that she was filming in an attempt to demonstrate that the applicant had breached the police protection notice.
In late 2022 the applicant returned to Country B with V, X and Y.
There is a troubling pattern of escalation in the respondent’s complaints about the applicant. The first police protection notice did not result in the making of a temporary protection order by a court. The statements made by the respondent to the police to support that application escalated in the number and type of allegations made by the respondent gets the applicant. For example in the first level she made to the police she made no complaint children were at risk of harm. However, in a second statement there was much more detail and the detail included allegations about matters that did not feature in her statement such as likely harm to the children. The respondent filed an application for a protection order herself with some increasing allegations in relation to weapons. However she withdrew that application, she says, on advice from a magistrate that the police protection notice was sufficient to protect her. The police file a vary application for a protection order. That came before the court but the court again concluded that a temporary protection order was not warranted. The escalation in her allegations concluded in her cross-examination when she described the applicant as a “warlord” who had committed “war crimes”. She did not identify the country with which Country B was at war.
It was part of the respondent’s case that the applicant engaged in controlling behaviour in that he controlled the party’s finances to her detriment. Her evidence was that the parties did not have a joint bank account and that the applicant forced the closure of her practice leaving her bereft of income. However, none of those allegations are made out on the evidence. The applicant gave evidence that the parties had a joint banking account. Ultimately the respondent accepted that in cross-examination but suggested that it had no balance. No bank records were produced.
I do not accept the respondent’s evidence that the applicant forced the closure of her practice, or her other businesses. Cross-examination established that the respondent had organised to sell the practice but had only received part of the purchase price and the sale did not eventuate. She had retained all of those funds for her own purposes. She retained all of her income earned between separation and the closure of her practice. None of that evidence appeared in her written testimony and it is entirely inconsistent with the picture that she paints of the applicant financially controlling her completely.
The evidence does demonstrate that the applicant has met many payments for the respondent or on her behalf. He has paid for her accommodation and other expenses. Nothing less would be expected given that he was the primary income earner in the parties’ household once the respondent ceased her practice and was leaving the family home from time to time. I reject the proposition that the applicant used any financial control of the respondent to coerce her into agreeing to consent orders whereby upon the parties’ separation the four older children lived with the applicant and the younger child lived with the respondent.
Mr G recommends that all of the children live in City C with their father. In reaching that conclusion Mr G considered the effects upon the parties’ daughters of them remaining in Australia. He reached the conclusion that there would be more benefit to them returning to live in Country B, notwithstanding the respondent’s position that she would not return to Country B at all. Returning to live in Country B would restore to these children the opportunity to maintain their sibling relationships and their relationship with their father.
The respondent’s evidence does not satisfy me that she has any genuine fear for her own safety should she return to Country B. I find that her evidence concerning the violence that she alleges she has suffered at the hands of the applicant and his family is not genuine but is designed to support her case on this application and perhaps her application for a protection visa. Having regard to those findings, her stance that she will not return to Country B demonstrates that her capacity to meet the emotional needs of her children, and in particular her two daughters, is impaired because she is not prepared to countenance a situation where her children can continue to enjoy relationships with all of those people who are close to them (siblings and parents).
Moreover, the respondent’s view of the applicant and her actions demonstrate that her capacity to encourage and facilitate a relationship between the children and their father should they remain living in Australia is also impaired. W told Mr G that her mother would not let her call her father or siblings and nor would the workers at the refuges at which they were living. Z told Mr G that:
[V] and her father “Hate” her mother. She said her father gives [V] money and “Spoils him”. [Z] indicated [V] does not go to school. When I asked [Z] how she was aware of this information she said her mother “Told me”.
These matters demonstrate the respondent’s willingness to undermine the relationship between these children and the applicant. There is nothing in the evidence that suggests that the applicant has behaved in a similar way and has in any way undermined the relationship between any of the children and the respondent. Indeed it was V’s observation to Mr G that it was the respondent’s own actions that have caused him to have difficulty with her. Further, Mr G’s observations of the respondent with V, W and Z demonstrate that the respondent does not have capacity to protect the children from her feelings about the applicant and from the issues between the parties. Mr G records that she talked to V about the court system, police, having no money and being “her only opportunity to leave”. On the other hand, Mr G’s report talks about the applicant’s preparedness and actions to prevent V from engaging W in conversations about these proceedings and engaging W in conversations about adult matters. I consider that the applicant demonstrated through this behaviour that his capacity to meet children’s needs and in particular to not undermine the children’s relationship with their mother or to otherwise impose on their relationships with her is intact.
I consider that the applicant’s proposal will carry more benefit for W and Z than will the respondent’s proposal. The applicant’s proposal will permit the children to renew their relationship with him and with their siblings, whom they are clearly missing. They will return to a familiar environment. They describe their situation in City C as “nice” and they feel safe with their father. The mother’s proposal will visit some detriment upon these children and in particular, it will deny them an opportunity to maintain, in the way in which it has gone before, their relationship with their siblings and their father. Moreover, it will disadvantage them because they will be exposed to the mother’s attitude towards the applicant something which she has seemingly no compunction in sharing with them. She will not, in my view, foster and encourage the children’s relationship with their father or their siblings should they live with her in Australia. Whilst return of the children to Country B might mean that their relationship with their mother becomes more problematical, I consider that the benefits of such a move out way that detriment. Moreover, whether the children continue to suffer that detriment will be a matter entirely for the respondent who, on the findings I have made above has no genuine reason not to return to Country B.
Despite the geographical distance between the applicant’s residence in City C and where the mother is likely to live in Queensland, neither party suggested that there would be any practical difficulty or any prohibitive expense for the children to spend time with the respondent should they live in City C and the mother continue to reside in Australia.
It was suggested in argument that the respondent had a greater capacity to meet the needs of the children because she was more freely available to them because she did not work. It was suggested that because the applicant has many business interests and is very busy and has in the past called on the assistance of nannies and the like to assist him with the care of the children, he would not have the capacity to meet their needs. I reject that argument. Indeed the very fact that he can employ nannies and other helpers to assist him with the care of children demonstrates that he has the capacity to meet the needs of the children both physical, intellectual and emotional.
CONCLUSION
For the reasons I have expressed above, I have concluded that the applicant’s proposal carries more benefit for these children than the respondent’s proposal. It is appropriate that they live with the applicant in Country B.
I am conscious that the respondent has on foot a protection visa application in which she has claimed protection in for the two children the subject of these proceedings. I do not see that as an impediment to the Court making an order because on the findings I have made above, the children will not be at an unacceptable risk of harm in Country B should they return there and, a return to Country B will bring them greater benefits than remaining in Australia.
The applicant seeks an order that the respondent be required, by injunction, to withdraw the protection visa application made on behalf of the children by including them in her family unit. It is appropriate to make that injunction.
I was not addressed on the enforceability of any parenting orders made by this Court in Country B. I decline to make any orders providing for time between these children and the respondent in Country B. That is a matter for the courts of that country. It is appropriate to make orders that provide for time between the children and the respondent should she live in Australia and for that time to happen here. In that respect the orders suggested by the applicant during the trial are entirely appropriate. I have chosen a start date of the end of this year because there is no evidence before me of the schooling arrangements in Country B for these children.
Given that the children will live in City C and be governed by the laws of Country B, no order for parental responsibility is appropriate.
I make the orders set out at the commencement of these reasons.
I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 31 March 2023
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