Court Allows Appeal and Orders Rehearing in Koen & Biondi Relocation Case
Koen & Biondi [2023] FedCFamC1A 89 (8 June 2023)
The Federal Circuit and Family Court of Australia, Division Appellate Jurisdiction dealt with a family law appeal involving the relocation of a child to another country. The appellant, Mr. Koen, appealed the primary judge's orders permitting the respondent, Ms. Biondi, to relocate their only child to Country D.
Facts:
The case involves a family law dispute between Mr. Koen (the appellant) and Ms. Biondi (the respondent) over the relocation of their only child to Country D. The couple, who met in 2016 and separated in 2017, had a child born in late 2016. After their separation, Ms. Biondi initiated proceedings seeking financial orders and later amended her application to include orders allowing her to relocate the child to Country D.
The proceedings have a complex history, with a final hearing concluding in December 2019 but the judgment not delivered until February 2021 due to COVID-19 pandemic disruptions. In the judgment, the primary judge permitted Ms. Biondi to relocate the child to Country D, which was considered to be in the best interests of the child.
However, no orders were made at that time as parties were asked to refine a draft set of orders. Due to this delay, Mr. Koen filed an application seeking leave to introduce fresh evidence on the impact of COVID-19 in Country D on relocation. This led to further hearings culminating in a second hearing in April 2022.
In December 2022, the primary judge delivered her judgment allowing Ms. Biondi's relocation with the child, mirroring her conclusion from February 2021. However, Mr. Koen appealed against this decision contending that the primary judge did not follow statutory requirements mandated by s 65DAA of the Family Law Act 1975 (Cth).
Issue: The central issue in this case is whether the primary judge erred in making orders allowing the respondent to relocate to Country D with the child. Specifically, did the primary judge fail to adhere to the statutory requirements outlined in s 65DAA of the Family Law Act 1975 (Cth) ("the Act"), which mandates consideration of whether equal time or substantial and significant time with each parent is in the best interests of the child and reasonably practicable?
Rule: The relevant legislation includes s 60CC, s 65DAA of the Family Law Act 1975 (Cth). Section 60CC outlines how a court determines what is in a child’s best interests. Section 65DAA specifies that when making a parenting order for a child's parents to have equal shared parental responsibility for the child, a court must consider whether it is in the best interests of the child for them to spend equal or substantial and significant time with each parent.
Application: The appellant argued that the primary judge focused on relocation as the primary issue rather than adequately assessing both parties' proposals on their merits. The Federal Circuit and Family Court agreed with this argument, stating that by deciding on relocation first, the primary judge failed to engage with the statutory imperative in s 65DAA to consider whether substantial and significant time with the appellant was in the child's best interest.
The Court pointed out that although both hearings saw similar proposals from both parties, there was no systematic analysis of these proposals through the lens of statutory considerations - an approach that would have been preferable. Furthermore, despite ordering equal shared parental responsibility, it was noted that at no point did the primary judge consider s 65DAA thereafter.
The judges referred to several precedents including MRR v GR (2010) and Sayer v Radcliffe (2012), which highlight that judges must consider each party's proposal on its merits according to prescribed legislative pathways. They noted that this had not occurred in this case - instead, relocation was treated as if it were solely about deciding where a child should live rather than determining which proposal would best meet their needs or promote their interests.
Conclusion: The Court concluded that there was a failure by the primary judge to follow statutory requirements mandated by s 65DAA of the Act. Consequently, they found that error had been established, thus allowing for an appeal. They ordered for rehearing before another judge and granted cost certificates to both parties for both appeal and rehearing.
Parties:
- Appellant: Mr. Koen
- Respondent: Ms. Biondi
- Independent Children's Lawyer (did not participate in the appeal)
