Biondi & Koen (No 9)

Case [2025] FedCFamC1F 226

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Biondi & Koen (No 9) [2025] FedCFamC1F 226

File number(s): MLC 2872 of 2017
Judgment of: CARTER J
Date of judgment: 8 April 2025
Catchwords: FAMILY LAW – MAINTENANCE – Where the applicant has recently obtained a visa enabling her to engage in paid employment but she is currently not employed – where the applicant seeks some time to seek appropriate employment – where it is proper that there be a lump sum payment of maintenance – where it is proper there be periodic maintenance.
FAMILY LAW – PROPERTY – Where it is not just and equitable that any orders be made – no orders made.
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 79, 90SB, 90SD, 90SE, 90SF, 90SM, 90ST

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.15(3)(e)
Cases cited:

Fatimi Pty Ltd v Bryant & Ors [2002] NSWSC 750

Keskin & Keskin and Anor (2019) FLC 93-932

Klewer v Official Trustee in Bankruptcy (No 2) [2010] NSWCA 258

Millar & Millar (1983) FLC 91-326

Sadasivam & Seshan (2019) FLC 93-899cour

Spencer & Squire (No.3) [2018] FCCA 2362

Stanford v Stanford (2012) 247 CLR 108
Division: Division 1 First Instance
Number of paragraphs: 142
Date of hearing: 14 & 18 March 2025
Place: Melbourne
Counsel for the Applicant: Mr Byrne
Solicitor for the Applicant: MacGregor Barristers and Solicitors
Counsel for the Respondent: Ms Swann
Solicitor for the Respondent: Lander & Rogers

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:

CARTER J

DATE OF ORDER:

7 APRIL 2025

THE COURT ORDERS THAT:

1.Pursuant to s 90SE of the Family Law Act 1975 (Cth) (“the Act”), the respondent pay or cause maintenance to be paid to the applicant:

(a)a lump sum payment of $12,000 on or before 20 May 2025; and

(b)the sum of $600 per week.

2.Upon the applicant obtaining part time work generating an after-tax income of not less than $200 per week, the amount of maintenance pursuant to order 1(b) be reduced to $400 per week.

3.Pending payment pursuant to Order 1(a) the respondent enable the applicant to continue to have the use of  Motor Vehicle 1, and that contemporaneously with the payment, the applicant do all things to return the vehicle and all keys to the respondent.

4.The requirement pursuant to Order 1(b) and/or 2 herein that the respondent pay maintenance to the applicant cease upon the earlier of:

(a)the applicant obtaining full time work (being 60 hours or more over a fortnight), or

(b)six months from the date of these orders.

5.The applicant immediately notify the respondent in writing:

(a)in the event she secures part time employment including proof of the net weekly income she will receive from that employment; and

(b)in the event she secures full time employment.

6.From the date of these orders, the periodic maintenance…

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AGLC
Biondi & Koen (No 9) [2025] FedCFamC1F 226
Case
[2025] FedCFamC1F 226
Decision Date

CaseChat Overview and Summary

Ms Biondi and Mr Koen appeared before Carter J in the Federal Circuit and Family Court of Australia to determine financial and property issues following their separation. Ms Biondi sought ongoing maintenance and a property adjustment, while Mr Koen opposed any further orders on the basis that he had already provided substantial financial support to Ms Biondi. The court was required to consider Ms Biondi's needs and capacity for self-support, as well as the contributions made by both parties during their relationship.

Carter J found that Ms Biondi was not currently employed and had recently been granted a visa permitting her to work. She required some time to re-enter the workforce and establish a stable living environment for herself and their child. The court considered Ms Biondi's evidence that she had been financially constrained and prioritised the child's needs over her own. It was noted that Ms Biondi lived frugally and managed to ensure the child's engagement in activities despite financial limitations. The court also considered that Ms Biondi would need to find new accommodation and purchase furniture, which would require additional financial support.

The court held that a lump sum payment of $12,000 and periodic maintenance of $600 per week was appropriate, reducing to $400 per week when Ms Biondi secured part-time employment with an after-tax income of at least $200 per week. Maintenance would cease entirely if Ms Biondi obtained full-time employment or six months from the date of the orders, whichever occurred first. The court also ordered that Mr Koen enable Ms Biondi to continue using a motor vehicle and that she return the vehicle and keys upon payment of the lump sum. Costs were apportioned between the parties, and all other applications were dismissed.

In conclusion, the court made orders for Ms Biondi to receive a lump sum and ongoing maintenance from Mr Koen, subject to certain conditions regarding her employment status. The court also ordered that Mr Koen enable Ms Biondi to use a motor vehicle and directed that costs be paid by the parties. The orders were intended to finalise the financial relationship between the parties and avoid further proceedings.

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:

CARTER J

DATE OF ORDER:

7 APRIL 2025

THE COURT ORDERS THAT:

1. Pursuant to s 90SE of the Family Law Act 1975 (Cth) (“the Act”), the respondent pay or cause maintenance to be paid to the applicant:

(a) a lump sum payment of $12,000 on or before 20 May 2025; and

(b) the sum of $600 per week.

2. Upon the applicant obtaining part time work generating an after-tax income of not less than $200 per week, the amount of maintenance pursuant to order 1(b) be reduced to $400 per week.

3. Pending payment pursuant to Order 1(a) the respondent enable the applicant to continue to have the use of Motor Vehicle 1, and that contemporaneously with the payment, the applicant do all things to return the vehicle and all keys to the respondent.

4. The requirement pursuant to Order 1(b) and/or 2 herein that the respondent pay maintenance to the applicant cease upon the earlier of:

(a) the applicant obtaining full time work (being 60 hours or more over a fortnight), or

(b) six months from the date of these orders.

5. The applicant immediately notify the respondent in writing:

(a) in the event she secures part time employment including proof of the net weekly income she will receive from that employment; and

(b) in the event she secures full time employment.

6. From the date of these orders, the periodic maintenance payments made by the respondent to the applicant shall be reduced by sums equivalent to the sums the respondent is required to reimburse Services Australia – if any – pursuant to the “Assurance of Support” provided by the respondent as a condition of the applicant’s Visa.

Enforcement of Orders

7. The applicant pay the costs order made on 25 June 2024 in the sum of $2,175 to the respondent on or before 20 May 2025.

8. Contemporaneously with the payment in Order 7, the respondent pay the applicant the sum of $1,564 for the costs of servicing Motor Vehicle 1 in February 2024.

Miscellaneous

9. All extant applications are otherwise dismissed.

AND THE COURT NOTES THAT:

A. Pursuant to s 90ST of the Act, the parties intend that these orders shall, as far as practicable, finally determine the financial relationship between them and avoid further proceedings between them.

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

Alternatively, if the Court determines to make orders pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”), it is his case that the funds already provided to the applicant by way of court orders, funds paid for obtaining her visa, to the immigration lawyers, and monies expended on her behalf for the preparation of family reports in relation to the parenting proceedings should be notionally added back and treated as a partial property distribution to the applicant and no further adjustment should be made. Those payments total $193,000.BACKGROUND AND PROCEDURAL HISTORY The applicant is 43 years old. She was born in Country D. The applicant travelled to Australia on a student Visa in early 2015 and has lived here since that time. She is not currently employed. She has very recently been granted a permanent Contributory Parent Visa and is now permitted to work. The respondent is 44 years old. He is an Australian citizen. The respondent operates a business known as F1 Corporation which he operates through the company FF Group. He earns about $126,000 per annum, including his wages and additional benefits he has through the company. The parties met in 2016 when the applicant was employed at the respondent’s business. They commenced a relationship shortly after they met. In 2016 the applicant moved into the respondent’s home at BK Street, Suburb BJ (“BK Street”). By that time the applicant was already pregnant. The parties’ daughter was born in 2016. The parties’ relationship promptly fell apart after their daughter was born. The parties separated in early 2017, and the applicant left the home with the child on about 20 February 2017. Regrettably the parties have been engaged in ongoing litigation since 24 March 2017. At that time the applicant sought financial support and subsequently parenting orders that would permit her to relocate to Country D with the child. The parenting and property proceedings were bifurcated on 6 September 2019. The final parenting hearing initially commenced in December 2019 and ran for four days. Reasons were delivered on 12 February 2021 but orders were not made that day. The proceedings were subsequently re-opened and ran for a further nine days in April and May 2022. Final parenting orders were made on 7 December 2022. Various financial orders were made during these proceedings – including orders for the respondent to pay child support and maintenance. In terms of financial orders made, they are as follows:(a)on 10 April 2017 the respondent was ordered to pay $200 per week – of which $100 was characterised as urgent spousal maintenance and $100 was characterised as child support;(b)on 24 August 2017 the orders of 10 April 2017 for payment were discharged and the respondent was ordered to pay $250 per week to the respondent pending the adjourned hearing date;(c)on 12 October 2017 the 24 August 2017 order for payment was discharged and a further order was made that the respondent pay $250 per week to the applicant by way of interim spousal maintenance until further order. In addition the applicant was to have sole use of Motor Vehicle 1 and the respondent was to pay for the registration, insurance, loan repayments and servicing expenses of the vehicle. These orders were made by consent;(d)on 23 December 2019 the amount of spousal maintenance was increased to $400 per week, by consent;(e)Order 4 of the orders made on 1 April 2020 provided “by way of further facilitation of time spent” that the respondent pay;a.A further $30 per week so that the periodic payments to the [applicant] by the [respondent] by way of her maintenance and child support total $575 per week;b.The [applicant’s] reasonable medical expenses for her attendance at a general practitioner of her choice;c.The [applicant’s] out of pocket expenses to attend regularly on her psychologist [naming her then psychologist].

Evidence

Evidence Before The Court

There was some disagreement as to the applicant’s capacity to seek financial support from the government. The applicant says she cannot – and that the respondent is her assurer and has assured her financial support for 10 years. However, the visa terms and conditions refer to the applicant being potentially eligible for government supports and services. I understand the respondent has paid a bond of $10,000 to Services Australia which can be used to repay monies the applicant accesses through government services, and which he may be required to “top up”. However, I had no expert evidence in this regard. THE EVIDENCE It has not been possible to include every aspect of each of the parties’ evidence. However, I have taken all the evidence into account. Just because I have not mentioned something in these reasons does not mean that I have not considered it. Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities. The parties were advised that pursuant to r 8.15(3)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) the annexures to the parties’ affidavits would not form part of the evidence before me unless tendered in the usual course.The Applicant’s case The applicant relied on:(a)her Fourth Further Amended Initiating Application dated 8 February 2025;(b)her Financial Statement dated 8 February 2025;(c)her trial affidavit dated 14 February 2025; and(d)her affidavit in reply dated 28 February 2025. The applicant gave evidence in a straightforward and genuine manner. It is the applicant’s case that she requires the payment of maintenance and that she is also entitled to a property adjustment. She is not engaged in paid employment and has only recently received a visa that entitles her to work. She says she requires support to “rebuild my career and establish a stable living environment” for herself and the parties’ daughter. The applicant does not depose to having made any meaningful financial or non-financial contributions during the parties’ very brief relationship to the asset pool. Her evidence focused on essentially her post separation contributions as a parent to the one child of the relationship. That includes having taught the child to read and write in Country D language and English, and providing attentive and diligent parenting, and opportunities for the child to learn and grow. The child is engaged in a raft of extra curricula activities, mostly funded by the applicant, and it is apparent she is thriving. In terms of her living arrangements, the applicant deposes that she currently rents a fully furnished apartment from a friend, but her friend wishes to return to live in the apartment. The applicant says in those circumstances she and the child will need to vacate their current home in around mid-2025. If the applicant does move, she will require a bond, and furniture. The respondent is sceptical about the applicant’s need to vacate her premises – as the applicant deposed in previous proceedings to having to imminently leave those premises which then did not eventuate.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Section 90SF(3) of the Act sets out the matters that I must take into account in determining a maintenance application. I now turn to those considerations.Consideration of the s 90SF(3) factors The applicant is 43 years old. She is currently not engaged in paid employment. She receives into her household $363 per week by way of Centrelink payments for the benefit of the parties’ daughter (which the applicant did not believe was a means tested benefit) and $700 per week from the respondent by way of ‘child support and maintenance’. She pays rent of $489 per week and deposes her weekly expenses for her and the child are $711. That does not include the costs of her attending upon her psychologist. It is clear the applicant lives frugally. Very much to her credit she has managed to ensure that the parties’ daughter has been able to engage in activities and participate in a range of enjoyable experiences. It is the applicant’s evidence that she has been so financially constrained at times that she has had to prioritise ensuring the child’s needs are met to the detriment of herself. As already set out, the child support assessment is $84.19 per week. Whilst the respondent had been paying well in excess of the assessment amount, it is clear that he will do so no longer. Also as already set out, it is the applicant’s evidence that the friend from whom she currently rents a fully furnished flat will be returning to Melbourne in around June 2025, at which time the applicant will need to find alternate accommodation for herself and the child. The applicant will also need to purchase furniture, crockery, linen, whitegoods and all other items necessary to furnish that alternate accommodation. The respondent agreed that it was likely the applicant’s rent would be about $500 per week. In early 2025 the applicant was granted a Contributory Parent Visa which will allow her to work. The applicant is tertiary educated. She has a bachelor’s degree. She deposes she has experience in her field. She has, however, not been working in that field for almost 10 years whilst she has been in Australia. During her time in Australia the applicant has undertaken some further training, completing a certificate course in about 2016/2017. She commenced – but did not complete – another course. In her oral evidence she said that she expected it would take about four months studying part time to complete the course. The applicant said she has started making applications for work in her field – but her skills and knowledge are outdated, and she requires further training. It was the applicant’s evidence that she has enjoyed teaching the parties’ child and is now considering starting a career in the education sector. To that end she is anticipating undertaking two courses. She said these courses can be completed within 24 months. She said she expected she could earn around $1,200 per week in education. She also said it is her intention to work part time whilst completing the courses.