Biondi & Koen (No 7)
[2024] FedCFamC1F 534
•13 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Biondi & Koen (No 7) [2024] FedCFamC1F 534
File number: MLC 2872 of 2017 Judgment of: CARTER J Date of judgment: 13 August 2024 Catchwords: FAMILY LAW – SUMMARY DISMISSAL – Where the father has applied to summarily dismiss the mother’s application for an adjustment of property under s 102QAB of the Family Law Act 1975 (Cth) – Where the matter has a protracted history of litigation – Where there is an appeal on foot in relation to parenting arrangements of the parties’ one child – Where it cannot be said that the mother’s application has no reasonable prospect of success – Where the matter is to be listed for trial directions. Legislation: Family Law Act 1975 (Cth) ss 90SE, 90SF, 90SM, 102QAB Cases cited: Beck & Beck (2004) FLC 93-181
Bigg v Suzi (1998) FLC 92-799
Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541
Webster v Lampard (1993) 177 CLR 598
Division: Division 1 First Instance Number of paragraphs: 78 Date of hearing: 4 July 2024 Place: Melbourne Counsel for the Applicant: Ms Swann Solicitor for the Applicant: Lander & Rogers The Respondent: Litigant in person ORDERS
MLC 2872 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR KOEN
Applicant
AND: MS BIONDI
Respondent
ORDER MADE BY:
CARTER J
DATE OF ORDER:
13 AUGUST 2024
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 18 June 2024 is dismissed.
2.The matter is listed for trial directions on 10 October 2024 at 10.00 am.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE CARTER
PROCEDURAL HISTORY
This matter has been on foot since 2017. It has a substantial background and history that has been detailed in previous judgments.
The application currently before me is that brought by Mr Koen – to summarily dismiss the application of Ms Biondi for an alteration of property interests pursuant to s 90SM of the Family Law Act 1975 (Cth). Ms Biondi is the applicant in the substantive property proceedings, and the respondent in this application.
By way of a brief background, Ms Biondi is a citizen of Country D. She arrived in Australia on a study visa in 2015. She was employed by Mr Koen in his business, F Pty Ltd. The parties then commenced a relationship in 2016, and Ms Biondi moved into Mr Koen’s home the following month. The parties’ one child, X, was born in 2016.
The parties separated on 20 February 2017 after living together for less than one year.
Ms Biondi commenced proceedings on 24 March 2017 seeking property orders only. The response filed by Mr Koen on 7 April 2017 sought both parenting and property orders. Ms Biondi then sought orders permitting her to relocate to Country D with the parties’ child.
On 6 September 2019, the property and parenting proceedings were bifurcated.
On 7 December 2022, after a lengthy defended hearing that took place over three years, parenting orders were made permitting Ms Biondi to relocate from Australia to Country D with the parties’ child.
Mr Koen successfully appealed those orders and the matter was remitted for rehearing. Final parenting orders were then made on 6 May 2024 by Williams J – who did not permit the relocation.
Ms Biondi has appealed the orders of Williams J. That appeal is pending.
The property aspect of the dispute was referred for case management by way of the orders made 6 May 2024. The matter was allocated into my docket with its first listing before me on 14 May 2024.
The financial relief sought by Ms Biondi at that time was reflected in the orders sought by her as annexed to the judgment of Williams J (being almost precisely the orders sought in her Amended Application filed 26 October 2023). There were serious and significant deficiencies in the orders sought. For instance, Ms Biondi sought the transfer to her of a property in which Mr Koen had only a 1/3 interest, that he pay the whole of the mortgage on the property (although he is only liable for 1/3 of the mortgage) and that she would ‘hold that property on trust’ for the parties’ child. Ms Biondi had not sought to join Mr Koen’s father, being the co‑owner of the real property. She also sought orders regarding child support which were not framed as a departure order application.
At the hearing before me on 14 May 2024, counsel for Mr Koen indicated that an application for summary dismissal may be pursued. I made orders that day requiring Ms Biondi to file a Second Further Amended Initiating Application setting out with particularity the orders she sought by way of property adjustment, spousal maintenance, or child support departure order. I also ordered that she file a statement of claim in the event she sought to join Mr Koen’s father.
Ms Biondi did file a Second Further Amended Initiating Application but did not particularise the orders she sought. She did not file a statement of claim. The Second Further Amended Initiating Application she filed on 14 June 2024 sought by way of final orders:
1.That there be an equitable property settlement between the parties including a Superannuation splitting order.
2.That the Applicant be excused from further particularising the final orders sought, pending the completion of discovery and valuations.
On 18 June 2024 Mr Koen filed an Application in a Proceeding in which I am asked pursuant to s 102QAB of the Family Law Act to dismiss Ms Biondi’s Second Further Amended Initiating Application in so far as an adjustment of property is sought, on the basis that there is no reasonable prospect of the proceedings being successfully prosecuted.
It is common ground that Mr Koen has provided spousal maintenance and child support to Ms Biondi throughout these proceedings, together with making additional payments for her benefit. There is, sensibly, no application for summary dismissal against Ms Biondi’s application pursuant to s 90SE(1) of the Family Law Act.
The matter came before me again on 25 June 2024. On that day I again made orders requiring the respondent to file a Third Further Amended Initiating Application setting out with particularity the orders sought, a statement of claim in the event she sought to join Mr Koen’s father, and an affidavit setting out her evidence in support of the orders she sought. Ms Biondi complied with those orders on 2 July 2024, filing a Third Further Amended Initiating Application, a Financial Statement, and an affidavit. She did not file a statement of claim. Nor do her orders seek to join Mr Koen’s father.
At the hearing before me on 4 July 2024, it was Ms Biondi’s application that all matters relating to financial relief be adjourned pending the outcome of her appeal. She informed the Court she would not pursue any application for financial relief in the event her appeal was successful, and she was subsequently permitted to relocate to Country D. In the circumstances she said it was unnecessary to hear any part of the property application until the outcome of that process was known.
That was opposed by Mr Koen who wished to pursue his application for summary dismissal – now of Ms Biondi’s Third Further Amended Initiating Application filed on 2 July 2024 – at this time. Further, if that application for summary dismissal was not successful, it was his case that the financial aspects of the parties’ dispute should continue to final determination irrespective of the outcome of the appeals process. It was asserted that Ms Biondi had commenced the application for financial relief in 2017, to which Mr Koen had responded, and it was not up to the parties to decide when the Court ought to hear that application. It was further asserted that there was no prejudice to the parties in the property application being heard and determined promptly.
At this stage I am satisfied it is appropriate to hear and determine the application by Mr Koen for summary dismissal.
For the reasons I will now set out, I am not satisfied that Ms Biondi’s application for property adjustment can be summarily dismissed.
I am also of the view that the determination of the parties’ applications for financial relief ought not be delayed as a result of any appeals process regarding parenting. Whilst Ms Biondi has said she will not pursue any application if her appeal is successful and she is subsequently permitted to relocate, there are ongoing interim orders requiring Mr Koen to support her. Ms Biondi deposes the payments are insufficient to meet her needs. Mr Koen deposes that he has no capacity to continue supporting her at the level currently determined. The interim orders also require Mr Koen to provide Ms Biondi with Motor Vehicle 1. There is an ongoing dispute as to whether that vehicle is suitable any longer, and Mr Koen has proposed an alternative option. Those matters need to be determined even if the appeal is successful and the matter remitted for re–hearing – which could be many months away.
In the circumstances I am satisfied there is no prejudice to either party for the financial matters to proceed before me by way of final hearing as soon as practicable – and indeed, that will be to their benefit. The application by Ms Biondi for property adjustment has been on foot for over seven years. It must be concluded as quickly, inexpensively, and efficiently as possible.
THE EVIDENCE
Mr Koen relied on:
(a)his Application in a Proceeding filed on 18 June 2024;
(b)his written submissions filed on 17 June 2024;
(c)his affidavit filed on 17 June 2024;
(d)his Second Further Response to Initiating Application filed on 17 June 2024; and
(e)his Financial Statement filed on 10 November 2023.
Ms Biondi relied on:
(a)her Third Further Amended Initiating Application filed 2 July 2024;
(b)her affidavit filed on 2 July 2024; and
(c)her Financial Statement filed on 2 July 2024.
APPLICATION FOR SUMMARY DISMISSAL
The recent amendments to the Family Law Act created a new Division 1A which deals with summary decrees.
Section 102QAB provides, relevantly:
No reasonable prospect of successfully prosecuting proceedings
(2) The court may make a decree for one party (the first party) against another in relation to the whole or any part of a proceedings if:
(a)the first party is defending the proceedings or that part of the proceedings; and
(b) the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.
When there is no reasonable prospect of success
(3) For the purposes of this section, a defence or proceedings or part of proceedings need not be:
(a) hopeless; or
(b) bound to fail;
to have no reasonable prospect of success.
Proceedings that are frivolous, vexatious or an abuse of process
(4) The court may dismiss all or part of proceedings at any stage if it is satisfied that the proceedings or the part is frivolous, vexatious or an abuse of process.
The law in relation to summary dismissal
The applicable considerations in determining an application for summary dismissal were identified in Bigg v Suzi (1998) FLC 92-799 and restated in Beck & Beck (2004) FLC 93-181 as follows at [17]:
(a)The power for summary dismissal is a discretionary one.
(b)Relief “is rarely and sparingly provided”.
(c)The parties seeking summary dismissal must show that the application is “doomed to fail” or as has been otherwise described “that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious”.
(d)A weak case or one that is unlikely to succeed is not “sufficient to warrant termination”.
(e)“If there is a serious legal question to be determined, it should ordinarily be determined at a trial.”
(f)“If notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a Court will ordinarily allow that party to reframe its pleadings.”
As set out at s 102QAB(3), an application need not be hopeless, or bound to fail, to have no reasonable prospect of success. However, it is plain that the power to summarily dismiss an application must be rarely provided, is to be exercised with “exceptional caution” and “should never be exercised unless it is clear that there is no real question to be tried”; per the joint judgment of Mason CJ, Dean and Dawson JJ in Webster v Lampard (1993) 177 CLR 598 at 602, quoted with approval in Beck at [19].
Whilst Mr Koen filed material on which he sought to rely, pursuant to the authorities, the application must be determined only on the basis of the material advanced by Ms Biondi. In the absence of any of the testing of her evidence, unless it is inherently incredible, I must assume at this stage that her evidence would be accepted at a final hearing. That principle is set out in Bigg v Suzi where their Honours quoted Kirby J in Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541 at 544-5 (which was quoted by the Full Court in its judgment in Bigg v Suzi) as follows:
…
2. To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action [Munnings v Australian Government Solicitor (1994) 68 ALJR 196 at 171f, per Dawson J] or in advancing a claim that is clearly frivolous or vexatious; [Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91.]
The Full Court in Beck at [21] stated:
21.Regard should also be had to paragraph 6.31 of the judgment in Bigg v Suzi where the Full Court referred to the fact that the wife, who was the applicant for the summary dismissal of a s 79A application by the husband, “had no right to adduce any evidence at that summary hearing to contradict the evidence of the husband or to seek to contradict any inference which it might be submitted should be drawn from that evidence.”
Defects in the pleading
Ms Biondi was given the opportunity to reframe the orders sought from those pleaded in her Further Amended Initiating Application filed on 26 October 2023. As indicated, she failed to properly particularise the orders sought when she filed her Second Further Amended Initiating Application on 14 June 2024. At the hearing on 25 June 2024 Ms Biondi asserted she was unable to particularise the orders sought until discovery had been completed and valuations undertaken. She said she needed a valuation of Mr Koen’s business and up to date disclosure of his assets and liabilities including details of the monies he asserted were loaned to him from various family members.
The pool does not appear to be complicated. Leaving the question of Mr Koen’s purported loans from family members to one side and an alleged debt to the Australian Taxation Office (which Ms Biondi apparently also does not concede), the pool is comprised of Mr Koen’s business, his 1/3 interest in a real property at BK Street, Suburb BJ (being the property in which he resides) and some modest superannuation entitlements. He received one half of the proceeds of sale of a property at BL Street, Suburb BJ in 2020 (which he said was approximately $80,000). Moreover, over the course of the proceedings there have been various orders for the provision of documents as well as for the valuation of the real properties. Leave was also given to the parties to issue unlimited subpoenas on 6 September 2019 – which included a specific reference to Ms Biondi issuing subpoenas to various banks.
In those circumstances I do not agree that it was necessary for there to be valuations and up to date discovery before orders could be articulated. At the very least, Ms Biondi could have asserted a percentage division of the pool.
I also do not accept that Ms Biondi did not have the opportunity to receive proper advice in relation to drafting her proposed property orders as asserted by her. She has been represented for substantial periods throughout the course of this lengthy litigation. As far back as early 2017, when she initiated the proceedings, she was represented. At that time, she sought financial relief, although the orders sought were not particularised in that document. She had solicitors on the record until 30 May 2024. Those solicitors were on the record when Ms Biondi’s Amended Initiating Application was filed on 23 March 2019 and the Further Amended Initiating Application was filed on 26 October 2023. In both those documents a raft of particularised (although substantially problematic) property orders were sought.
At any rate, litigants in person are still required to articulate the orders they seek. Mr Koen needs to know what case he has to answer.
Ms Biondi was given a further opportunity to draft the orders she sought and a Third Further Amended Initiating Application was filed by her on 2 July 2024. Some of the proposed orders related to spousal maintenance and child support. In my view, her application for Mr Koen to maintain a vehicle for her use, and to meet her private health insurance payments can be properly characterised as part of that spousal maintenance application.
There are poorly drafted orders sought that might be characterised as seeking a departure order in relation to child support. There has been no service upon the Child Support Registrar, and as far as I could tell, the current child support assessment has also not been filed. Ms Biondi did not depose any evidence that might suggest there are special circumstances that would justify a departure order. I do not know what ground she proposed for any departure order. Whether the Court is even prepared to deal with this unformed child support departure application will be a matter for another day.
In relation to a property adjustment, it is tolerably clear that Ms Biondi seeks orders for:
(a)a cash payment of $25,000 within 28 days (which she said she will use to purchase a new vehicle);
(b)an additional cash payment to her of $147,000; and
(c)a superannuation splitting order to her from Mr Koen’s entitlements of $11,000.
Ms Biondi also sought an order that Mr Koen:
3.… is responsible for paying or cause to be paid all the legal fees relating and incidental to the visa application by the mother for permanent residency in the Commonwealth of Australia and all on going Tourist Visa applications as well as all the fees related to the Parent Visa application until such time as she obtains a Parent Visa or other visa that allows the mother remain lawful in Australia.
I am unclear as to the source of power that the Court is being asked to exercise if it were to make that order.
Ms Biondi does not seek to join Mr Koen’s father, who is the co-owner of the property at BK Street. Ms Biondi ultimately conceded it is not her case that Mr Koen owned the whole of the property, and she accepts he has only a 1/3 interest.
In circumstances where Mr Koen seeks summary dismissal of Ms Biondi’s application only insofar as she seeks orders pursuant to s 90SM(1), the question I must now determine is whether Mr Koen can satisfy me on the face of the material filed by Ms Biondi that she has no reasonable prospect of successfully prosecuting that part of the proceedings.
Ms Biondi’s evidence
Much of the material deposed by Ms Biondi is relevant to the consideration of Ms Biondi’s ‘future needs’ and/or to her application for spousal maintenance and child support departure application. As already observed, it is not in dispute that Ms Biondi’s spousal maintenance application is well founded (although the quantum and duration is not agreed). I have done my best to consider the evidence in so far as it could support an adjustment pursuant to s 90SM(1).
Relevantly, Ms Biondi deposed that she started to work for Mr Koen in his company in around early 2016. She said the parties commenced an intimate relationship in 2016. She said the parties commenced cohabitation the following month and remained living together until 21 February 2017, being a cohabitation period of less than one year. At that time Ms Biondi left the home with the parties’ infant daughter. The parties’ daughter is now seven years old. She lives primarily with Ms Biondi and spends five nights a fortnight and half of all school holidays with her father, with that time to progress to six nights a fortnight.
Ms Biondi does not dispute Mr Koen’s evidence that at the commencement of cohabitation he held the following assets:
(a)the business, at that time run through F Group Pty Ltd;
(b)a 1/3 share in the property at BK Street, Suburb BJ that had been purchased in 2010;
(c)a half share interest in the property at BL Street, Suburb BJ, that had been purchased in 2007 by his parents. Mr Koen was registered on title with his father as tenants in common in equal shares in 2010;
(d)Motor Vehicle 2;
(e)household contents; and
(f)superannuation entitlements with Superannuation Fund 1.
Ms Biondi also does not dispute that she had no assets at the commencement of the relationship.
It is the evidence of Ms Biondi that in about November 2016 Mr Koen requested she sign a Financial Agreement. She said according to the particulars of that Agreement, Mr Koen indicated he had net assets of $1,360,000. At that time, Mr Koen had his business, a half share interest in a property at BL Street, Suburb BJ, and a one third interest in the BK Street property.
Ms Biondi also deposed to having been subjected to family violence by Mr Koen. I am not clear whether she would assert that as a result of the behaviours of Mr Koen her contributions were more arduous. Her evidence was not suggestive of that.
In terms of Ms Biondi’s contributions, she deposed:
(a)she made some contributions to Mr Koen’s business including:
·“selecting people to recommend working” as employees. She said that involved contacting potential employees, and selecting appropriate candidates for interview after reading curriculum vitaes;
·training new employees (although no detail was provided as to what that involved, or the number of people she trained);
·creating invitations for parties conducted by the business;
·undertaking “some small Information Technology works”, giving the examples of fixing the printer and converting documents from PDF format into Word documents;
(b)she purchased items for the child, which were left with Mr Koen at separation, and that she had assembled the furniture;
(c)she assisted Mr Koen in “organising the layout” of his home office and measuring the furniture; and
(d)she contributed her cash income from her work during the course of her pregnancy.
At most, the time during which these efforts were made could not have exceeded less than a year. On their face, a number of the contributions do not seem significant. There seems little evidence, if any, that she contributed in any meaningful way to Mr Koen’s interests in property or his business. She provided no detail as to what amount of work she undertook in training new employees. It is unclear what cash income she asserts she contributed. She referred at one point to earning $500 a week. There was a reference to her paying $400 into a joint account from about mid-2016. Assuming that was on a weekly basis, if she did that until the child was born, she paid about $10,400. She said those monies were used “for household items and essentials”. Ms Biondi could not have contributed the whole of her income as she also deposed that she paid for all her student visa extensions and all her course fees.
In terms of homemaker and parent contributions, it is not in dispute that Ms Biondi has at all times been the child’s primary carer. That was the case during the parties’ few months of cohabitation after the child was born. It has been the case since separation. Ms Biondi deposed that she attends to all of the child’s educational needs and is responsible for ensuring the child’s attendance at multiple extra curricula activities.
Ms Biondi deposed that when she met Mr Koen she was working in the service industry earning $700 per week. She said she gave up her job, at the request of Mr Koen, and then worked in his company, earning $500 per week. Since becoming a mother, she has not been in paid employment. She said she struggles emotionally and has been diagnosed with depression. She attends upon a psychologist funded by the monies paid by Mr Koen.
Ms Biondi is in Australia on a visitor visa, the conditions of which do not permit her to be engaged in paid employment. She resides in rented accommodation in Suburb QQ, paying $434 per week in rent. She receives some government support for the child, and otherwise relies on payments made to her or for her benefit by Mr Koen. There have been multiple interim orders made across the course of these proceedings requiring payments by Mr Koen to Ms Biondi.
The orders pursuant to which Mr Koen is to provide Ms Biondi with a vehicle were made by consent on 12 October 2017. Pursuant to that order Ms Biondi is to continue to have the use of Motor Vehicle 1, and Mr Koen is to pay the outgoings including the costs of servicing the vehicle. Ms Biondi continues to use that vehicle, although it is her case that the vehicle is not appropriate for her needs. It is also Ms Biondi’s evidence that there have been a number of issues with Mr Koen’s non-compliance with orders that he maintain the vehicle.
The other operative orders regarding periodic financial support were made on 1 April 2020. Those orders provided that Mr Koen pay a total of $575 per week by way of spousal maintenance and child support. The order did not provide a breakdown of the amount for maintenance and the amount for child support. There was also no reference to how, if any, amount paid by Mr Koen is to be treated vis-a-vis any child support assessment. Ms Biondi’s evidence was that there was a child support assessment in place at that time, and the order is not expressed as a departure order. The order also required Mr Koen to pay Ms Biondi’s “reasonable medical expenses” and her out of pocket expenses to attend “regularly” upon her psychologist. These orders were expressed to be made, not by way of spousal maintenance but “[b]y way of further facilitation of time spent”.
Ms Biondi filed a Financial Statement on 2 July 2024. In that statement she deposed she received $364 per week by way of Centrelink payments, and $700 per week from Mr Koen in total. She otherwise has no assets or liabilities of any significance. It is Ms Biondi’s evidence that Mr Koen is tardy at times in making periodic payments to her and for her psychologist’s appointments.
It was submitted by counsel for Mr Koen that the payment to Ms Biondi of $700 included an additional weekly amount over and above the periodic amount pursuant to the orders of 1 April 2020 from which Ms Biondi can then pay her psychologist. I also note the evidence of Mr Koen that there is a child support assessment dated 9 August 2023 pursuant to which he has been assessed to pay Ms Biondi $127.54 per week, which does not appear to be a matter in dispute. That would mean Mr Koen is paying Ms Biondi $572.46 per week in spousal maintenance.
Ms Biondi deposed that the funds provided to her by way of spousal maintenance are insufficient to meet her needs.
Ms Biondi does not accept the assertions of Mr Koen that his income is $88,400 per annum. She does not accept his assertion that his business has no value. However, she does acknowledge she received the tax returns and financial statements (for him and for the business) for the year ended 2022. Those returns show that the company made a profit of $41,903 in 2021 and a loss of $138,985 in 2022. The business also had a tax liability of $204,000 in 2022. I am unclear whether Ms Biondi accepts the existence of that liability.
Ms Biondi also does not accept Mr Koen’s assertion that he had borrowed over $800,000 from his family to fund his legal fees, and those of Ms Biondi. She indicated in her submission that she believes the business generates a significant income and that in reality Mr Koen has funnelled monies from the business to his family and then ‘borrowed’ those monies from his family. That belief appears to have no foundation beyond Ms Biondi’s suspicions.
Ms Biondi was also somewhat suspicious as to how Mr Koen had applied his half of the proceeds of sale of the property at BL Street when that was sold in 2020.
As indicated, during the course of submissions Ms Biondi said she accepted Mr Koen owned only the 1/3 interest in the property at BK Street, and she did not assert that his father held the remaining 2/3 interest on trust for Mr Koen. Nor did she seek to join Mr Koen’s father to these proceedings. I do not know whether Ms Biondi accepts Mr Koen’s assertion that he has equity of approximately $244,000 in that property. The property has not been valued for some years.
DISCUSSION
It is Mr Koen’s case that:
(a)Ms Biondi cannot satisfy the Court on her evidence that it is just and equitable for any order to be made; and
(b)her application for property adjustment has no reasonable prospects of success.
It is his case that he is in a very poor financial position – with modest equity in the BK Street property, little superannuation, and significant business and personal liabilities. As already noted, Ms Biondi does not accept the pool as articulated by Mr Koen.
It is also Mr Koen’s case that irrespective of what is or is not in the pool, Ms Biondi has not provided evidence that she has made any financial or non-financial contributions to the acquisition, conservation, or improvement of any of the property – all of which Mr Koen owned at cohabitation. It is an agreed fact that Ms Biondi did not bring any assets into the relationship.
There was no explanation as to how Ms Biondi has calculated the cash sum she seeks, save she said she had ‘based it on rent’. In terms of the superannuation splitting order, she seeks half of Mr Koen’s entitlements.
Counsel on behalf of the Mr Koen asserted the only meaningful contributions Ms Biondi made were as homemaker and parent to the parties’ child. Her homemaker contributions – if any – could only have been made over the very limited period of less than one year. At any rate, Ms Biondi does not depose anywhere to having attended to undertaking household duties such as cooking, cleaning, washing, shopping and the like. Mr Koen does concede Ms Biondi was the child’s primary carer – and she played the primary role in providing care after the child’s birth and for the two months before the parties separated. It is also conceded she has continued as the child’s primary carer thereafter.
Mr Koen also acknowledges Ms Biondi does have needs moving forward particularly in circumstances where she is unable to earn an income as a condition of her current visa. It is his case however that those needs can be – and are being – adequately addressed by way of payment of maintenance and do not justify the making of orders adjusting property interests.
In terms of the superannuation splitting order sought, counsel for Mr Koen emphasised she is seeking half of his entitlements in circumstances where the parties lived together for less than one year, and she has continued to share in his post separation income as a result of significant payments he has made to her and on her behalf over the last seven years.
It is not in dispute that Mr Koen has paid towards Ms Biondi’s legal fees, in accordance with orders as follows:
·$10,000 paid towards the legal costs of Ms Biondi associated with Mr Koen’s application to adduce further evidence pursuant to orders made 6 April 2021;
·$12,500 paid to Ms Biondi’s lawyers for anticipated costs pursuant to orders made 3 November 2021;
·$12,500 paid to Ms Biondi’s lawyers pursuant to orders made 7 December 2021, which increased the payment to be made pursuant to the 3 November 2021 order to $25,000;
·$38,000 characterised as litigation funding was paid pursuant to orders made 26 April 2022; and
·a further $10,000 characterised as litigation funding was paid pursuant to orders made 5 May 2022.
Accordingly, Mr Koen has paid $83,000 towards Ms Biondi’s legal fees.
Mr Koen has also paid Ms Biondi’s half share of expenses of single experts as per Court orders, being:
·$2,270 for report of Dr B
·$4,400 for the report of Ms Y; and
·$3,113 for Ms Y to give evidence.
It was asserted by counsel for Mr Koen that if the property proceedings remained on foot, Mr Koen would seek those payments be characterised as part property distributions and notionally added back into the pool. If that was the approach adopted by the Court, it was asserted those payments – totalling $92,783 – would eclipse any order for property adjustment Ms Biondi might otherwise achieve.
Ms Biondi also does not appear to dispute that Mr Koen has paid approximately $29,800 to her immigration lawyers, and that there will be further fees that he will need to pay on her behalf to obtain an appropriate visa for Ms Biondi to remain in Australia.
The authorities make it plain that I must determine this application on the basis of whether the evidence adduced by Ms Biondi, if accepted at trial, establishes a case that has reasonable prospects of success. I do not take the evidence of Mr Koen into account where that is contradicted, or not accepted, by Ms Biondi.
It was submitted on behalf of Mr Koen that the real issue before the Court is the question of appropriate spousal maintenance for Ms Biondi, and that there is no merit in her application for property adjustment. There is much force in that submission. Indeed, it may well be that Ms Biondi’s application for property adjustment is not a strong case. It may even be that ultimately no property adjustment is ordered. However, I cannot be satisfied on her evidence that the operation of s 102QAB has been attracted. On her evidence Ms Biondi has made some modest financial contributions over the parties’ short cohabitation, along with some modest contributions towards Mr Koen’s business. For the last two months of the relationship, she made significant parenting contributions. More significantly, she has continued to make contributions towards the care of the parties’ daughter over the seven years since separation. Ms Biondi’s future needs are also significant.
In the circumstances, I cannot, without a testing of the evidence, determine that it is not just and equitable for any order to be made. Further, on the basis of these asserted contributions and taking into account the relevant s 90SF(3) factors it could not be said Ms Biondi has no reasonable prospect of successfully prosecuting a property adjustment application.
The matter will now be listed for trial directions. I anticipate my trial directions will include a valuation of the BK Street property. However, I do not anticipate making any orders for the business to be valued. A business valuation is expensive, and neither party is in a position to meet the costs of same. Moreover, there appears to be little utility in obtaining a valuation. There is no evidence it is worth much – it has no assets of note and has significant liabilities. Counsel for Mr Koen indicated the company may be placed into external administration. Mr Koen has now been served with a Director’s Penalty Notice, pursuant to which he owed $183,807.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter. Associate:
Dated: 13 August 2024
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