CASE NOTE: BIONDI & KOEN [2020] FAMCA 201

The case of Biondi & Koen [2020] FamCA 201 was urgently listed as a result of the COVID-19 pandemic.[1]

Background

The Mother was an international student who arrived in Australia from Brazil in 2015. The parties had a brief and casual sexual relationship in April 2016. The Mother fell pregnant with the parties’ child. The parties later moved in together but finally separated in February 2017.

The Mother made an application to the Court seeking to relocate back to Brazil with the child. The matter came before Her Honour Judge Bennett of the Family Court of Australia for final hearing in December 2019. Her Honour reserved her final decision (ie. postponed delivering her decision). Pending the delivery of her final decision, she made interim orders that the child spend frequent time with the Father, which included the introduction of overnight time.

In week 1, the child would spend from 10am on Wednesday until 10am on Thursday with the Father. In week 2, she would spend from 10am until 6pm on Wednesdays, Thursdays and Saturdays with the Father. The arrangement meant that the child would spend at total of 24 hours each week with her Father.

The Current Proceedings

The Chief Justice released a statement in March 2020 providing guidance on the listing of matters such as this one during COVID-19. The statement provided that:

  1. It is imperative that parents and carers act in the best interests of their children.
  2. Consistent with their responsibilities to act in the children’s best interests, parents and carers are expected to comply with Court orders in relation to parenting arrangements. This includes facilitating time being spent by the children with each parent or carer pursuant to parenting orders.
  3. If the parties are unable to agree to vary the arrangement, or if it is unsafe to do so, and one or both parents continue to have real concerns, the parties are at liberty to approach the Court electronically and seek a variation of the orders.”

The Mother sought to vary the current parenting arrangements. She sought to suspend the introduction of overnight time and for the Father to instead spend two hours each day with the child at her house (which would be a maximum of 14 hours a week), while wearing a face mask and gloves as precautions against the spread of COVID-19.

The Father opposed the application to vary the current parenting arrangements except that he would take all reasonable protective measures and precautions within his home to protect the child from contamination, including disinfecting the home prior to each visit and not permitting visitors while the child is present. He sought no change to the current parenting arrangements.

As the parties were unable to agree to vary the parenting arrangements, the matter was listed for urgent mention. This occurred pending the delivery of Her Honour’s final decision in relation to the Mother’s application to relocate back to Brazil with the child.

Decision

Her Honour noted that the Mother was justifiably concerned in that:

  • The Mother had no private health cover and was not covered by Medicare.
  • If she fell ill, she had no family to support her in Australia.
  • If either the child or the Mother became infected with COVID-19, they may have to had been separated from each other for the exclusion period (which was 14 days at the date of the hearing). The child had not been separated from the Mother for one night, let alone 14 nights.

The Father gave evidence that he had engaged in social distancing, had no visitors (apart from his sister), managed to conduct his business without coming into contact with employees and had disinfected his home.  

Her Honour noted that while the Mother had genuine concerns, she was not satisfied that they were reasonably held. Her Honour noted that the Mother’s anxiety was unlikely to be reduced by suspending overnight time but may be reduced by reducing the frequency of time that the child was to spend with the Father. As such, Her Honour reduced the time that the child was to spend with the Father to twice each week.

[1] See Family Court of Australia, Statement from the Hon Will Alstergren – Parenting Orders and COVID-19, http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/about/news/mr260320.

Written By Eustacia Yates and Brooke Nickerson

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