Biondi & Koen (No 7) - [2024] FedCFamC1F 534

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Biondi & Koen (No 7)

Details

AGLC: Biondi & Koen (No 7) [2024] FedCFamC1F 534
Case: [2024] FedCFamC1F 534
Decision Date: 13 August 2024

CaseChat Overview and Summary

The matter of Biondi & Koen (No 7) involved Mr Koen, the applicant, who sought to summarily dismiss Ms Biondi’s application for a property adjustment under section 102QAB of the Family Law Act 1975 (Cth). The application arose from a protracted history of litigation between the parties, with an ongoing appeal related to the parenting arrangements of their child. The Federal Circuit and Family Court of Australia (Division 1) was tasked with determining whether the mother’s application had no reasonable prospect of success, warranting a summary dismissal.

The legal issues before the court included whether Ms Biondi's application was so devoid of merit that it should be dismissed without a full hearing. The court also had to consider if the application was frivolous, vexatious, or an abuse of process, as permitted under section 102QAB(4) of the Act. Given the lengthy duration of the litigation and the complexity of the issues, the court needed to weigh the merits of proceeding to a final hearing against the potential for unnecessary delay and expense.

The court found that Ms Biondi’s application could not be deemed to have no reasonable prospect of success. The application had been ongoing for over seven years, and the court was of the view that it would be in the best interest of both parties to proceed with the final hearing as soon as practicable. The court emphasised the need for the matter to be concluded efficiently and cost-effectively. Consequently, the application for summary dismissal was dismissed, and the matter was scheduled for trial directions on 10 October 2024.

The court ordered that the application filed on 18 June 2024 be dismissed and that the matter be listed for trial directions on 10 October 2024 at 10:00 am. The form of the order was subject to entry in the Court’s records, and any minor typographical or grammatical errors could be reviewed and corrected.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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

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