Koen & Biondi
[2023] FedCFamC1A 89
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Koen & Biondi [2023] FedCFamC1A 89
Appeal from: Biondi & Koen (No 4) [2022] FedCFamC1F 965 Appeal number(s): NAA 282 of 2022 File number(s): MLC 2872 of 2017 Judgment of: TREE, CHRISTIE & SCHONELL JJ Date of judgment: 8 June 2023 Catchwords: FAMILY LAW – APPEAL – Relocation – Where the primary judge made orders permitting the respondent to relocate to Country D with the child – Where the appellant contended that the primary judge did not follow the statutory requirements mandated by s 65DAA of the Family Law Act 1975 (Cth) – Where the primary judge delivered reasons after the first hearing but did not make any orders – Where the primary judge’s reasons following the second hearing comprise four parts, with Part II being the reasons delivered after the first hearing – Where it would have been preferable for the reasons to systematically have addressed the evidence through the prism of the statutory considerations – Where the primary judge made an order for equal shared parental responsibility but did not thereafter consider s 65DAA – Where the primary judge did not consider the appellant’s proposal on its merits – Where the primary judge treated the respondent’s application for relocation as the primary issue for determination instead of evaluating the competing proposals – Error established – Appeal allowed – Matter remitted for rehearing – Costs certificates issued to both parties. Legislation: Family Law Act 1975 (Cth) ss 60CC, 65DAA Cases cited: Aitken & Aitken [2023] FedCFamC1A 69
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Sayer v Radcliffe (2012) 48 Fam LR 298; [2012] FamCAFC 209
Starr & Duggan [2009] FamCAFC 115
Number of paragraphs: 54 Date of last submissions: 26 April 2023 Date of hearing: 29 March 2023 Place: Heard in Melbourne, delivered in Cairns Counsel for the Appellant: Ms Swann with Ms Tiernan Solicitor for the Appellant: Lander and Rogers Counsel for the Respondent: Mr Strong Solicitor for the Respondent: Macgregor Solicitors The Independent Children's Lawyer: Did not participate ORDERS
NAA 282 of 2022
MLC 2872 of 2017FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR KOEN
Appellant
AND: MS BIONDI
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
TREE, CHRISTIE & SCHONELL JJ
DATE OF ORDER:
8 June 2023
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.The orders made by the Federal Circuit and Family Court of Australia (Division 1) on 7 December 2022 are set aside.
3.The matter is remitted for rehearing to a judge of the Federal Circuit and Family Court of Australia (Division 1) other than the primary judge.
4.The appellant is granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in the appeal.
5.The respondent is granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in the appeal.
6.The appellant and respondent are granted a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to them in respect of the costs incurred by them in relation to the re-hearing.
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 the pseudonym Koen & Biondi has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE, CHRISTIE & SCHONELL JJ:
By Amended Notice of Appeal filed 6 March 2023, Mr Koen (“the appellant”) appeals the primary judge’s orders permitting the relocation of the parties’ only child to Country D.
The appeal was opposed by Ms Biondi (“the respondent”).
The Independent Children’s Lawyer (“the ICL”) did not appear on the appeal.
The Amended Notice of Appeal contended nine separate grounds. Counsel submitted they fell into three broad categories. The first category encapsulated in Grounds 1 and 2 contended apprehension of bias by reason of pre-determination, and apprehension of bias and/or miscarriage of justice by reason of numerous interventions and interruptions.
The second category captured in Grounds 3 to 8 asserted error by failure to follow the statutory pathway including failing to properly consider the matters in s 60CC and s 65DAA of the Family Law Act 1975 (Cth) (“the Act”). In particular, it was said the primary judge failed to properly consider the benefit to the child of a meaningful relationship with the appellant and the new evidence that arose in the ‘second hearing’. The third category (Ground 9) addressed the primary judge’s orders for the appellant’s time with the child in Country D.
As the appeal progressed, the appellant expanded upon earlier grounds asserting miscarriage of justice. To avoid any suggestion that the respondent was not given sufficient time to meet this new ground, the parties were given the opportunity to file written submissions. The last of those submissions were received on 26 April 2023.
Ordinarily, where an appeal contends allegations of apprehended bias and/or a miscarriage of justice including by a denial of procedural fairness, then such grounds must be dealt with first (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577). Irrespective of the correctness of the result, in the event that an appellant were successful on those grounds, a new trial must be ordered.
However, as shall be seen, quite independently of any challenge to the integrity of the trial process, we are satisfied that the appeal must succeed, and consequently it is unnecessary to consider the apprehended bias or miscarriage of justice grounds, as the matter will need to be remitted for further hearing before a different judge in any event.
BACKGROUND
The appellant is an Australian citizen.
The respondent is a citizen of Country D and came to Australia on a visa on 26 April 2015.
The parties met in early 2016 and commenced a sexual relationship shortly thereafter. The respondent subsequently became pregnant in early to mid-2016. The parties separated in 2017.
The parties’ only child is X who was born in late 2016.
Following the breakdown of the parties’ relationship, the respondent commenced proceedings in the Federal Circuit Court (as it then was) on 24 March 2017, initially seeking financial orders only. She subsequently amended her Initiating Application and sought orders permitting her to relocate the child to Country D.
The matter was transferred to the Family Court of Australia (as it then was) on 18 May 2017.
The proceedings have a plagued history.
A final hearing over four days concluded on 23 December 2019 with the primary judge reserving her decision.
The intervention of the COVID-19 pandemic in March 2020 and the subsequent government mandated lockdowns in Melbourne, the first of which occurred on 31 March 2020, led to the primary judge hearing further applications on 27 March 2020, 10 December 2020 and 8 February 2021.
On 12 February 2021, the primary judge delivered reasons for judgment in relation to the substantive relocation proceedings. The reasons permitted the respondent to relocate the child to Country D.
The primary judge invited the parties to refine a draft set of orders. On 24 February 2021, the matter was listed for mention before the primary judge and the parties were ordered to provide any amendments to the orders within 14 days. The draft orders were never refined and consequently no orders were ever made.
On 9 March 2021, the appellant filed an Application in a Proceeding seeking leave to adduce fresh evidence of the impact on relocation of COVID-19 in Country D.
On 22 April 2021, the primary judge granted leave to re-open. There were a significant number of further applications before the primary judge which culminated in the matter being set down for a further hearing on 26 April 2022. An order was also made for a further Family Report.
A second hearing commenced before the primary judge on 26 April 2022 and ran for a further nine days (via Microsoft Teams).
On 7 December 2022, the primary judge delivered her reasons for judgment and made final orders.
The primary judge in her reasons concluded that the child’s best interests were met by permitting the relocation to Country D. To that extent, the conclusion mirrored that reached in the reasons delivered 12 February 2021.
As a consequence of the appeal, the orders permitting relocation have been stayed.
THE PRIMARY JUDGE’S REASONS
The form of the reasons are unusual. They comprise four parts. Part I is an introduction, Part II is the reasons delivered 12 February 2021 following the hearing that completed in December 2019, Part III addresses the evidence subsequent to 12 February 2021, and Part IV is the conclusion. It would have been preferable for the judgment to have addressed, in a systematic way, all of the evidence through the prism of the statutory considerations rather than the segmented and disjointed way adopted by the primary judge.
Before proceeding to deal with the appeal, we observe that the approach adopted by the primary judge in delivering reasons and then adjourning for the parties to bring in a Minute of Order is a practice to be eschewed. In this case it has had a catastrophic result. The Full Court recently observed in Aitken & Aitken [2023] FedCFamC1A 69 at [32] and [35] as follows:
32.… In Wilson and Ors v Minister for Aboriginal and Torres Strait Islander Affairs and Anor (1996) 189 CLR 1 at 11, the High Court described the function of Commonwealth judicial power in the following terms:
The function of the federal judicial branch is the quelling of justiciable controversies, whether between citizens (individual or corporate), between citizens and executive government (in civil and criminal matters) and between the various polities in the federation (21). This is discharged by ascertainment of facts, application of legal criteria and the exercise, where appropriate, of judicial discretion (Fencott v Muller (1983) 152 CLR 570 at 608). The result is promulgated in public and implemented by binding orders.
…
35.… delegating responsibility to the parties to conceive the nature and form of the orders required to quell the controversy between them arguably amounted to an abdication of judicial duty. …
(Emphasis in original)
This case is a salutatory example of what can happen when orders and reasons are not coterminous. Rather than “the quelling of justiciable controversies”, it has promoted a further two years of litigation, resulted in the incurring of further costs and exposed the child to the ongoing turmoil of being caught in the Court process that could have ended with the first set of reasons.
THE APPEAL
While the Amended Notice of Appeal addressed nine separate grounds, it is dispositive of this appeal to only consider Ground 4. The Summary of Argument in support of Ground 4 elaborated on the ground by contending that the primary judge failed to follow the statutory pathway. In oral argument, the appellant’s counsel submitted that the primary judge failed to follow the statutory requirements mandated by s 65DAA of the Act.
In both of the hearings that occurred in December 2019 and again in April 2022, the proposals of the parties remained substantially the same. The respondent sought to relocate to Country D with the child. The appellant sought that the child remain in Australia and that the child spend substantial and significant time with him.
In Part II of the reasons, the primary judge determined that the respondent should be permitted to relocate with the child and that it was in the child’s best interests that there be an order for equal shared parental responsibility. Having made that determination, the primary judge thereafter recorded as follows:
274. Sub-section 65DAA(1) of the Act provides that, in making a parenting order for a child’s parents to have equal shared parental responsibility for the child, I must consider the following:
(a) whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
275. Neither parent sought an increase nor variation to existing spend time arrangements pending [the child’s] departure from Australia so I will not make any. The relocation of [the child] to Country D excludes the possibility of equal shared or significant and substantive time.
(Footnotes omitted)
In Part III of the reasons, the primary judge recorded that the parties sought an order for equal shared parental responsibility (at [403]–[404]) and then determined to make such an order (at [405]). Having made such a determination, the primary judge did not thereafter consider s 65DAA of the Act. No part of the reasons in Parts III and IV even mention s 65DAA.
The appellant’s counsel submitted that although compelled by the legislation to do so, the primary judge did not consider whether or not an order for equal time and/or substantial and significant time was in the child’s best interests because she had already determined (as she had in Part II of the reasons) that the relocation to Country D was to occur. Approaching the matter in that fashion was, as submitted by the appellant’s counsel, to fall into error.
There is much force in this submission.
In Starr & Duggan [2009] FamCAFC 115, the Full Court observed:
39.Section 65DAA will provide a useful framework to consider the advantages and disadvantages, not only of the equal time and substantial and significant time scenarios, but also other outcomes which may be in the child’s best interests, including the proposal to relocate.
In MRR v GR (2010) 240 CLR 461 (“MRR v GR”), the High Court, in the context of a relocation case, specifically addressed what their Honours described as the imperative terms of s 65DAA. Their Honours said:
6.Part VII of the Act (ss 60A-70Q) concerns children. It was substantially amended in 2006 by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). Section 60B(1) of the Act provides that it is an object of the Part to ensure that the best interests of children are met, inter alia, by “ensuring that [they] have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”. Section 60CA requires that a court must regard the best interests of the child as the paramount consideration when deciding to make a particular parenting order in relation to a child. The considerations necessary to be taken into account in determining what is in a child’s best interests are listed in s 60CC.
7.Section 65D(1) provides that the Court may make such a parenting order as it thinks proper, subject to the provisions of ss 61DA and 65DAB. Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child. Section 65DAB requires the Court to have regard to any parenting plans entered into between the parties and is not relevant in this case.
…
9.Each of sub-ss (1)(b) and (2)(d) of s 65DAA requires the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”.
…
13.Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
(Footnotes omitted)
In Sayer v Radcliffe (2012) 48 Fam LR 298 (“Sayer v Radcliffe”), the Full Court observed as follows:
48.A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents: see Palmer (No 2) at [76]; Morgan at [80]–[81]. It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.
An examination of the reasons for judgment reveals that the primary judge did not “consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway”.
In Part I of the primary judge’s reasons, her Honour identified the proposals of each party (at [2]–[3]) and said that she had considered the appellant’s proposal for the child to remain living in Australia (at [19]). A search for that consideration within Parts II, III and IV and a consideration of whether substantial and significant time with the appellant in Australia was in the child’s best interest is forlorn.
Part II records the primary judge’s reasons delivered on 12 February 2021. The reasons comprise some 255 paragraphs. The first 140 paragraphs record the proposals of the parties, extracts from the jointly appointed single expert’s report, extracts from the evidence of the respondent’s psychologist, a consideration of the relevant legal principles and matters of historical relevance. A consideration of the s 60CC matters commences at [161]. At [165], the primary judge recorded:
165.… Neither the proponent for relocation nor the party opposing relocation bears an onus to establish that a proposed change to an existing situation or continuation of an existing situation will best promote the best interests of the child. … Frequently, the determination involves weighing disadvantage and risk of one proposal against the disadvantage and risk of other proposals. …
Pausing there, the primary judge seemed to not consider that there was also required to be weighed the advantages in each party’s particular proposal. This becomes particularly pertinent where it becomes apparent that the primary judge seemed to not consider thereafter any matter that might pertain to an advantage to the child of the appellant’s proposal.
Between [166] and [242], the primary judge addressed the additional considerations. The primary judge recorded that she was satisfied that the child “has a very good but not identical relationship with each parent” (at [171]), that the appellant accepted that the respondent felt isolated in Australia (at [173]), and that she accepted the expert evidence that the child’s relationship with the appellant would weaken if relocation was permitted (at [175]).
No part of the primary judge’s consideration of the s 60CC(3) factors involved any consideration of the appellant’s proposal for the child to remain living in Australia. Indeed, the entire focus of the s 60CC considerations was viewed through the prism of relocation and the advantages that it posed for the child and the respondent as well as the disadvantages to the respondent and child of remaining in Australia. There was no consideration by the primary judge of the appellant’s proposal and its advantages to the child. The primary judge under the heading of “[c]onclusion on [r]elocation” acknowledged that the relocation would weaken the child’s relationship with the appellant (at [243]), and concluded that the child’s best interests were served by permitting the relocation to Country D, coming with it, as it does, adverse implications for the child’s time with the appellant (at [248]).
The primary judge determined that an order for equal shared parental responsibility was in the best interests of the child (at [272]) and found accordingly that “[t]he relocation of [the child] to Country D excludes the possibility of equal shared or significant and substantive time” (at [275]).
An examination of the primary judge’s reasons in Part II reveal that the primary judge treated, for all intents and purposes, the respondent’s application for relocation as the primary issue for determination. The primary judge consequently did not evaluate each of the competing proposals. Put another way, the primary judge approached the matter as though her task were to decide where the child would live as opposed to deciding which of the various proposals about the amount of time to be spent with each parent best met the child’s needs or promoted the child’s interests.
In determining the question of relocation first, the primary judge inhibited her capacity to engage with the statutory imperative in s 65DAA of considering whether substantial and significant time with the appellant was in the child’s best interest. To adopt the vernacular, the primary judge put the cart before the horse.
Parts III and IV of the reasons traverse some 152 paragraphs. Those parts do not mention s 65DAA nor a consideration of the mandatory requirements.
The first 98 paragraphs address allegations arising out of a departmental investigation of child protection issues, what the primary judge describes as the appellant’s concerns about the child in the respondent’s care, documents relied upon, the parties’ proposals, and the appellant’s concerns if relocation were to occur. The parties’ proposals in the second hearing remained substantially the same as in the first.
The primary judge thereafter addressed the evidence of the new single expert and made a finding that she accepted her evidence (at [375]–[384]), addressed some matters relating to what she described as the appellant’s “conduct and behaviour” (at [385]–[388]), and concluded that relocation was in the child’s best interests (at [389]).
There is no consideration of the appellant’s proposal or of s 65DAA of the Act. As with the reasons in Part II, the focus in Parts III and IV is that relocation was the primary issue for determination and, once determined, it became a consideration of what thereafter should be the appellant’s time with the child once relocated.
The primary judge did not, despite the Full Court’s admonition in Sayer v Radcliffe, consider on its merits the appellant’s proposal that the child remain in Australia or whether substantial and significant time with the appellant was in the child’s best interest and if not why not. The High Court has expressed in the clearest of language what the legislation requires; “[s]ection 65DAA(1) is expressed in imperative terms. … [i]t is a matter upon which power is conditioned” (MRR v GR at [13]).
It is no answer to contend that a reading of the judgment can by some process of inference lead to the conclusion that one can be satisfied that the section has been considered. Even if it were so, in this instance such conclusion is not open. The primary judge neither expressly nor by inference considered that which she was required to do.
CONCLUSION
For the above reasons, we are satisfied that the appellant has established error on the part of the primary judge. In those circumstances, it is unnecessary to consider the remaining grounds of appeal as the appeal must be allowed and the matter remitted for hearing before another judge.
COSTS
In circumstances where the appellant has been successful on a point of law, then it is appropriate that a costs certificate be granted to each of the appellant and the respondent for both the appeal and the rehearing.
We will make orders accordingly.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Tree, Christie & Schonell. Associate:
Dated: 8 June 2023
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