Biondi & Koen (No 3)

Case [2022] FedCFamC1F 288

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Biondi & Koen (No 3) [2022] FedCFamC1F 288

File number(s): MLC 2872 of 2017
Judgment of: BENNETT J
Date of judgment: 3 May 2022
Catchwords: FAMILY LAW – COSTS – Application for litigation funding in parenting proceedings where reliance is placed on costs power.
Legislation: Family Law Act 1975 (Cth)
Cases cited:

Strahan & Strahan (2011) FLC 93-466

Zschokke and Zschokke (1996) FLC 92-693

Division: Division 1 First Instance
Number of paragraphs: 51
Date of hearing: 26 April 2022
Place: Melbourne
Counsel for the Applicant: Mr Whitchurch
Solicitor for the Applicant: Macgregor Barristers and Solicitors
Counsel for the Respondent: Ms Stoikovska SC
Solicitor for the Respondent: Lander And 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

ORDER MADE BY:

BENNETT J

DATE OF ORDER:

26 APRIL 2022

THE COURT ORDERS THAT:

1.The father pay to his solicitors by way of litigation funding for the mother the sum of $38,000 within 24 hours, such monies to be paid out to the practitioners for the mother upon production of an appropriately drawn account (which do not contain any information to which legal professional privilege attaches).

2.My reasons will be delivered subsequently.

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

BENNETT J:

INTRODUCTION

  1. On the first day of defended parenting proceedings concerning X (5 years old), counsel for the mother made an oral application that the father pay $43,080 for litigation funding to cover the mother’s estimated costs and disbursements for the hearing which is estimated to take four days. The respondent father and the court were aware that the mother would apply for litigation funding. There having been two earlier orders made by me totalling $35,000. The mother announced on 28 January 2022 that the $35,000 funds would be exhausted before the commencement of this four day hearing and further funding would be sought on the first day if not entertained on 28 January 2022. There was a notation to that effect at [45] of my reasons for decision of 28…

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AGLC
Biondi & Koen (No 3) [2022] FedCFamC1F 288
Case
[2022] FedCFamC1F 288
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Ms Biondi, the mother, applied for the court to order the father to fund her litigation costs, specifically her legal representation in parenting proceedings. The father, who runs a business and is the primary financial provider for the mother and their child, opposed the application. The matter was heard and decided by Bennett J. The court needed to determine whether the father was required to fund the mother's legal costs in the parenting proceedings and, if so, the amount of such funding. The court considered the financial circumstances of both parties, including the father's business and income, and the mother's lack of independent income and reliance on government benefits. The court also considered the nature and complexity of the parenting issues, the mother's limited English proficiency, and the need for an interpreter. The court found that the father should contribute to the mother's legal costs in the parenting proceedings, as the mother was unable to afford them herself and the father had the financial means to do so. The court ordered the father to pay $38,000 to his solicitors within 24 hours, to be paid to the mother's solicitors upon production of an appropriately drawn account. The court's decision was based on the need for fairness and equality between the parties in the parenting proceedings, and the recognition that the mother's limited financial resources should not prevent her from effectively participating in the proceedings. The court's order was subject to review and variation in accordance with the relevant rules of court.

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

ORDER MADE BY:

BENNETT J

DATE OF ORDER:

26 APRIL 2022

THE COURT ORDERS THAT:

1. The father pay to his solicitors by way of litigation funding for the mother the sum of $38,000 within 24 hours, such monies to be paid out to the practitioners for the mother upon production of an appropriately drawn account (which do not contain any information to which legal professional privilege attaches).

2. My reasons will be delivered subsequently.

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.

Background

Background to the litigation

I have ordered that the father pay to his solicitors $38,000 within 24 hours, which I calculate to be by 3:00 pm on 27 April 2022. In the interests of not taking up time allocated for the defended hearing, I said that I would deliver my reasons subsequently. These are those reasons. RELEVANT BACKGROUND I will recite some non-contentious background in order to give context to the application. The father is 41 years old and runs a business, FF Group, of which he is director. The mother is 40 years old, not employed outside the home and has the primary care of X who was born in 2016. The mother’s comprehension of written English is better than her conversational English but her conversational English is good. She makes a considerable effort to speak and understand English but requires the services of an interpreter in the EE language. The parties met through the father’s business. The mother was present in Australia on a Tourist Visa which was granted to allow her to study English here. The mother has completed her English course and undertaken other studies but her visa status does not entitle her to seek paid employment in Australia or to receive any government assistance. The mother is excluded from Medicare. The mother is solely reliant on maintenance payments from the father and X’s entitlement to an income tested pension or benefit from the Commonwealth Government. From time to time the father has paid for the mother’s visa to be renewed and there is a pending application for a Parenting Visa which, if granted, would allow the mother to remain in Australia indefinitely as a permanent resident. The parents commenced cohabitation in May 2016. They separated in 2017 shortly after X was born when the mother left the father’s residence taking X with her. There has been no resumption of cohabitation or of the relationship. They did not marry. Proceedings were commenced by the mother’s Initiating Application for financial relief filed on 24 March 2017. On 7 April 2017 the father filed a Response to the Initiating Application seeking parenting as well as other financial orders. On 10 April 2017 interim orders were made which included an urgent interim order for spousal maintenance to be paid by the father for the mother’s benefit. That was followed by a spousal maintenance order in the sum of $250 per week made by Senior Registrar FitzGibbon on 24 August 2017. I have since made further spousal maintenance orders including one that is still current. The matter was allocated to my docket on 2 August 2018. In the financial proceedings the mother sought to affect the interests of third parties and bring those interests into the property interests divisible between the father and herself. In the parenting proceedings, the mother sought to relocate X’s place of residence to Country D. On 6 September 2019 I ordered that the financial proceedings be heard separately to the parenting proceedings. Subsequently, the mother’s application for alternation of property interests was struck out of the list of pending cases. That is, it was not dismissed and has not been considered on its merits.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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