Biondi & Koen (No 9)
[2025] FedCFamC1F 226
•8 April 2025
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 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.
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
INTRODUCTION
The applicant in these proceedings seeks final orders for the respondent to make the following payments to her or on her behalf:
(a)maintenance at $550 per week, indexed annually, until she obtains full time employment (being 35 hours or more per week);
(b)additional monies to meet the costs of her treating psychologist (including the sum of $7,020 being for the outstanding costs of past consultations) and ongoing payments into the future – which would be an additional $90 per week;
(c)comprehensive health insurance for her; and
(d)all out of pocket medical expenses until she obtains full time employment.
These are the applicant’s proposed Orders 1-6.
Styled as being by way of property adjustment, the applicant seeks:
(a)a cash payment of $25,000 to purchase a car;
(b)payment of $1,564 to reimburse for a service undertaken on Motor Vehicle 1 she currently drives in February 2024;
(c)payment of $171,000 within 90 days; and
(d)a superannuation split in her favour of $11,000.
At the time of hearing the trustee of the superannuation fund had not been afforded procedural fairness. I was advised that would be attended to shortly. Counsel was advised that if there was no evidence of procedural fairness at the time judgment was delivered, I would deal with the matter on that basis. No evidence has been provided as to procedural fairness.
There was no end date to the obligation for the respondent to meet the costs of the applicant’s psychologist or comprehensive health insurance. In submissions, counsel for the applicant proposed those payments would cease upon the applicant obtaining full time employment.
The applicant abandoned her application in so far as she sought a child support departure order. I was informed the respondent has been assessed to pay $84.19 per week by way of periodic child support.
The respondent opposes the orders. It is his case that there should be no orders made by way of property adjustment or superannuation splitting order. He proposes the only order that be made be by way of maintenance to the applicant set at $400 per week until the earlier of either the applicant obtaining employment or 12 June 2025. He also proposes the applicant continue to have the use of Motor Vehicle 1 registered in the name of the company previously operated by the respondent and which is now in liquidation. He proposes the applicant retain the vehicle for 12 months or until the liquidator seek possession of it, whichever is the sooner.
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].
There are issues in relation to that order. The order does not express what proportion of the $575 per week was attributable to maintenance and what was attributable to child support. I do not know if there was a child support assessment in place at that time. The order is silent as to whether the payment of any amount by way of child support was to be credited against any administrative assessment. In sub-paragraph c there is no definition of “regular”. This has caused ongoing issues.
(f)pursuant to a number of orders made between 6 April 2021 and 5 May 2022 the respondent was required to provide litigation funding to the applicant’s lawyers. The upshot of those orders is that the respondent has paid $83,000 to the applicant’s solicitors. These payments funded the applicant’s representation in the parenting proceedings;
(g)orders made on 28 January 2022 required the respondent to be responsible for the cost of the child’s attendance three to four days a week at kindergarten. The order did not specify whether this was by way of child support or how those payments would interact with any administrative assessment;
(h)orders made on 28 August 2018, 28 January 2022 and 6 May 2022 required that in the absence of Victoria Legal Aid funding, the respondent pay the costs of two family reports and the costs of the Single Expert attending to give evidence. Those additional payments on behalf of the applicant totalled $9,783; and
(i)the final parenting orders made on 7 December 2022 provided specifically only that Order 4(a) of the orders made 1 April 2020 remained in full force and effect. Accordingly, it is the respondent’s case that since that time he has not been obligated to pay the applicant’s reasonable medical expenses or meet the costs of her “regular” attendance upon a psychologist.
In addition to making these payments the respondent has also met the costs of immigration lawyers engaged by the parties to secure the necessary visas to enable the applicant to remain in Australia. It is agreed the total costs paid by the respondent are $46,617 to the immigration lawyers, $43,600 to the Department of Home Affairs for the permanent visa and a further $10,000 ‘assurance of support’ payment. I note, of course, that it was not the applicant’s desire to remain in Australia as she sought to return with the parties’ child to Country D. Accordingly, the respondent voluntarily met these costs as the applicant’s ability to remain in Australia was a significant consideration in the parenting proceedings.
In May 2023 the respondent increased the weekly payments to the applicant from $575 per week to $610.
Between April 2020 and July 2023, the respondent paid for the applicant’s treating psychologist at $160 per week. The applicant then changed to a different psychologist – Ms AY. It is the respondent’s evidence that he experienced difficulties liaising with Ms AY as to the applicant’s attendance upon her, and this caused issues with making timely payments. The applicant agrees that the respondent was at times late in making payments, but she says that was because the respondent was unreliable.
In about March 2024 the respondent advised the applicant that he would increase the weekly payments to the applicant by an additional $90 bringing the total weekly amount payable by him to $700. He advised the applicant that she could use those additional funds to pay her psychologist directly rather than him arranging for and paying Ms AY himself. He also informed the applicant that he could not afford to meet the costs of weekly appointments and accordingly would provide her with funds to cover the costs of one psychologist’s session per fortnight (which was $180 per session).
The respondent then commenced paying the applicant $700 per week.
The applicant did not agree to the additional $90 being paid by her to her psychologist. She said she needed the additional funds to meet her own needs and the respondent was to pay her psychologist on top of the $700 weekly payment. She has not paid the psychologist since that time but has continued to attend. The psychologist is owed $7,020 for 39 sessions, which the applicant says the respondent is required to pay.
In early 2025 the applicant travelled to New Zealand for two nights. This was required as she had to be offshore to receive her parenting visa. The costs of that travel she says were $1,170. She did not request the respondent pay her those funds before she travelled offshore, and instead secured the funds through a loan from the BO Foundation, a charitable organisation that has provided the applicant with some assistance.
In early 2025 the applicant was granted the Contributory Parent Visa. She is now a permanent resident and able to engage in paid employment. The respondent is the sponsor and assurer. As I understand it, as the assurer the respondent has indicated his ability to support the applicant without her needing any income support from Services Australia for the duration of the support period. In the event any income support payments are made to the applicant, it is the respondent’s understanding that he will be required to pay those monies back.
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.
There appear to be two orders sought by the applicant which in effect are neither property adjustment nor maintenance orders. Those orders are the applicant’s proposed Orders 3 and 9, which appear to be seeking enforcement of earlier orders. Proposed Order 3 refers to payment of the applicant’s psychologist’s fees of $7,020 and proposed Order 9 refers to payment of service fees on Motor Vehicle 1 of $1,564.
Leaving aside the funds sought by way of enforcement, the applicant seeks lump sum payments by way of property adjustment as follows:
(a)the sum of $25,000 with which she will purchase a car; and
(b)an additional cash payment of $171,000.
The applicant’s use of a motor vehicle has been a source of conflict between the parties throughout the proceedings. The applicant continues to drive Motor Vehicle 1 that was purchased by the respondent, in the name of his then company, in around 2016. It is the applicant’s case that despite an order that the respondent meet the costs of servicing the car, the respondent has scrimped on the costs of maintenance, refusing basic services, such as changes of oil filters. She said as a result, the vehicle has presented with numerous issues.
I had no evidence (even if it were relevant) from a mechanic to verify that the issues asserted by the applicant were caused as a result of the respondent’s non-attendance to basic maintenance. It also does not appear to be relevant to the matters that I must determine whether the respondent did or did not prevent appropriate repairs or maintenance being undertaken on the vehicle. The vehicle is still registered in the name of the entity which is now in liquidation. It is unclear when – or whether – it will be taken into possession by the liquidators.
The applicant says she no longer wants to retain Motor Vehicle 1. Instead she seeks a $25,000 cash adjustment so she can purchase a new vehicle.
According to the applicant’s evidence, she has calculated the additional cash adjustment sought of $171,000 substantially on the basis that she anticipates she will be required to pay rent for seven years at $500 per week. She said this amounts to $168,000 but it would actually total $182,000. She deposed the further $3,000 as calculated by her is to reimburse her for other expenses including for the costs of travelling to New Zealand as required to fulfil the requirements of being offshore when her visa was granted.
Given that the applicant is also seeking spousal maintenance to meet the costs of accommodating herself and the parties’ child, there would be an element of “double dipping” for there to be a property adjustment also substantially calculated by reference to anticipated rental costs. This was accepted by the applicant.
In addition, she seeks a superannuation split of $11,000. However, procedural fairness has not been afforded to the trustee.
There was no attempt made to articulate the applicant’s contributions in terms of a percentage of the asset pool; nor to articulate what further adjustment she might receive pursuant to s 90SF(3) of the Act.
The Respondent’s case
The respondent relied on:
(a)his Third Further Amended Response to Initiating Application dated 17 February 2025;
(b)his Financial Statement dated 17 February 2025;
(c)an Outline of Case dated 11 March 2025;
(d)his trial affidavit dated 17 February 2025;
(e)his affidavit in reply dated 3 March 2025; and
(f)the affidavit of Ms N dated 5 March 2025.
A number of documents were tendered on behalf of the respondent.
The respondent also gave his evidence in straightforward and genuine manner, as did his sister.
At the commencement of the parties’ relationship the respondent operated a business. He owned a one third interest in the BK Street property which had been purchased in 2010. His father owns the other two thirds interest. The respondent also had a half interest in a property at BL Street, Suburb BJ (“BL Street”) which had been purchased in about 2007 by the respondent’s parents.
The respondent also had Motor Vehicle 2 which he continues to drive. He also continues to live in the BK Street property. He said he and his father contribute to the mortgage.
It is the respondent’s evidence that he and his father sold the investment property in BL Street in 2020 to meet the costs of this litigation. The respondent said he received $132,000 as his share of the proceeds of the sale of that property, which he applied towards legal fees.
MAINTENANCE
Pursuant to s 90SE(1) of the Act, I am empowered to make such order as I consider “proper” for the maintenance of one of the parties to the relationship.
There is no dispute that the geographical requirements in s 90SD of the Act are satisfied. Similarly, there is no dispute that the requirements in s 90SB of the Act are also met – as there is a child of the relationship. In the circumstances of this case, I am also satisfied that it would be a serious injustice to the applicant if no order for maintenance was made.
Section 90SF of the Act sets out the matters that must be taken into consideration in relation to a maintenance application. First, I must apply the principle that the respondent must maintain the applicant only to the extent that the respondent is reasonably able to do so, and only if the applicant is unable to support herself adequately.
There appears to be a concession by the respondent that he has some ability to support the applicant – although he proposes for a shorter period, and for a smaller payment than agitated by her.
There also appears to be a concession that – at least at the time the matter was heard – there was an adequate reason why the applicant could not support herself, being that she had only recently received a visa that permitted her to engage in paid employment and she had not yet found any employment.
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.
In her oral evidence the applicant said she had found a course she could complete in six months to become an educator.
She acknowledged she could obtain some menial work – for instance as a cleaner – whilst looking for better work or completing further studies.
The applicant owns no property and has no other financial resources.
It is the applicant’s evidence that she struggles with anxiety and distress. She remains in Australia, despite desperately wishing to return to Country D. She is separated from her family. She has had limited financial resources. She describes herself as physically, emotionally and psychologically exhausted from the stress of the protracted proceedings. She says she relies heavily on the psychological support she receives from her treating psychologist Ms AY upon whom she attends most weeks. No evidence was adduced from Ms AY to confirm that weekly treatment remained necessary for the applicant.
The respondent is 44 years old. He operates a business and has an annual income of about $126,000. He owns property and has a superannuation entitlement as follows:
FF Group
Nominal
1/3 interest in BK Street, Suburb BJ
$366,666
Motor Vehicle 2
$4,500
Motor Vehicle 3
$5,000
Superannuation with Superannuation Fund 1
$29,021
At separation the respondent had a half interest in the BL Street property, which he co-owned with his father. That property was sold in 2020. The respondent said he received $132,000 which he applied towards legal fees.
The respondent’s interest in BK Street is subject to a mortgage. Post separation, the mortgage has been drawn down by a further $261,600. The respondent’s one third share of that mortgage increase is $87,200. The respondent said he applied those funds to meet legal fees.
The respondent’s one third share of the current mortgage is $122,000. Accordingly, his share of the equity in the property is $244,666. He said he pays $215 per week towards the mortgage. He said at times he is unable to make the full payment and his father ‘picks up the shortfall’.
During the relationship and for some years post separation the respondent operated his business through FF Group. That entity is now in liquidation. It owns Motor Vehicle 1 driven by the applicant.
It is the respondent’s evidence that this business experienced significant financial difficulties as a consequence of the global pandemic. By 2022 the company owed approximately $204,000 to the Australian Taxation Office (“ATO”). As at February 2024 the debt to the ATO had grown to approximately $260,000. The respondent said a payment plan was implemented, but he was unable to meet the payments. The company took out a loan with BN Financial Services (“BN Financial Services”) for which the respondent gave a personal guarantee. There is still around $30,000 owing to BN Financial Services, who have lodged a caveat on BK Street.
On 3 June 2024 the ATO issued a Director Penalty Notice to the respondent for unpaid goods and services tax. He said he was unable to meet the terms of that notice and determined to place the company into external administration. The liquidator advised the respondent that as at 14 February 2025 the ATO debt of the entity is in excess of $376,500.
The respondent has now incorporated a second entity – FF Group. It owns some equipment and two vehicles but is of nominal value.
It is also the respondent’s evidence that he has credit card liabilities of in excess of $22,000. He says he has additional liabilities, including outstanding legal fees of in excess of $211,000 and that he owes about $800,000 to his family for funds advanced by them over the course of the lengthy litigation to meet his legal fees and some of the costs he has paid on behalf of the applicant. He also has to repay the balance of the loan with BN Financial Services.
The applicant has expressed significant concern that the respondent’s financial circumstances are far different from his narrative. It is her case that the respondent received cash payments from his work which are not reflected in his declared income. She articulated no proper foundation for that assertion save that she deposed:
From my experience living with the [respondent], I am aware that most of his income is received in cash, allowing him to declare significantly less than what he actually earns to avoid taxation. I do not believe this practice has changed.
and in her oral evidence she maintained that during their relationship the respondent “boasted” that his accountant was “good at hiding” his real income.
The applicant lived with the respondent for around nine months more than seven years ago. She acknowledged she was not involved in the business paperwork at that time.
An examination of the respondent’s lifestyle does not reveal anything other than modest spending. He continues to drive the same vehicle he purchased prior to the parties’ relationship. He has not purchased additional properties. I was not advised he has travelled extensively overseas or holidayed lavishly. Notwithstanding numerous bank statements have been provided to the applicant through the discovery process. At trial, there were no transactions put to the respondent that could support her assertion that the respondent was ‘hiding’ his true financial position.
The respondent’s sister was on affidavit and gave evidence. She said she had drawn down on her mortgage over time to advance total funds of around $214,000 to contribute towards the respondent’s legal costs. Whilst she hoped to be repaid her oral evidence was that if the respondent was unable to pay her, she “would accept that”.
It is the respondent’s case that in addition to increasing the mortgage over his interest in BK Street, his father has provided him approximately $124,200 from his personal savings, a further $315,300 from other accounts in which his father has an interest and that his father also paid $193,800 directly to the respondent’s solicitors on his behalf.
The respondent’s father was not on affidavit. Counsel for the applicant submitted I should draw an adverse inference from the absence of sworn evidence as to funds advanced from the respondent’s father. The respondent deposed that his father has suffered poor health, including additional medical issues in 2023. Whilst his father has accompanied him to Court, I accept the respondent’s concerns about the additional stress that having to give evidence would put his father under. I note also English is not his first language, and it would accordingly fall to the respondent to arrange and pay the costs of a Country P language interpreter for the purposes of his father’s participation in these proceedings. Moreover, the applicant sought no orders in relation to the BK Street property – and thus the respondent’s father was not a necessary party. Nor did the respondent assert the monies advanced by his family were joint liabilities. If the adverse inference sought to be drawn was that the funds were not really advanced by the respondent’s father, the applicant did not identify any other source of funds – other than the respondent’s family or her assertion that he was paid in cash – as sources from which the respondent could otherwise have met all the legal fees for himself, and the applicant, including those of the immigration lawyers.
There is no loan agreement between the respondent and his father. Nor was there any evidence that demands had been, or would shortly be made, for repayment. Nevertheless, I accept that the funds have been advanced by the respondent’s family and applied substantially to legal fees. I also accept this was done as the paternal family wished very much to ensure that the child remained in Australia.
The parties have one child together – and effectively share her care between them. A child support assessment has issued, pursuant to which the respondent is required to pay the applicant $84.19 per week.
Neither party is cohabiting with another person.
Determination as to periodic maintenance
As already observed, the respondent concedes he should pay the applicant maintenance, albeit at a lower rate, and for a shorter duration than proposed by the applicant. I regard this as a concession by the respondent that he does have the capacity to pay her not less than $400 per week for at least a few more months.
The respondent’s Financial Statement includes payment of health insurance at $82 per week. His evidence at trial was that he has ceased his private health insurance. In that financial statement it is also asserted that he pays superannuation at $196 per week apparently from his income. I do not regard the respondent’s voluntary contributions to superannuation as a necessary expenditure by him. Additionally, the amount attributed in his financial statement to child support is $135 per week. That is approximately $50 per week more than he has been assessed to pay. Assuming he has cancelled his private health insurance, reduces his child support payments to the amount assessed and does not make voluntary contributions to his superannuation, he can reduce his expenditure by $329 per week. Taking those matters into consideration, together with his own concession that he can meet a payment of $400 per week, I am satisfied the respondent is able to meet payments of $600 per week.
I am also satisfied the applicant has the need for support. She has not worked in her degree field for about 10 years and has otherwise been out of the workforce since before the child was born. Whether the applicant wishes to return to IT, or whether she wishes to engage in a new endeavour, I accept she will need to retrain. On her own evidence, re-training can be done contemporaneously with her working at least part time. She currently rents – and when she has to relocate from her current premises, which she says will occur shortly, it is not disputed that her rental payments are likely to increase to around $500 per week. In addition, the applicant will have to furnish that accommodation.
I am also satisfied that given she has only recently been granted a visa that permits her to work it is reasonable that the applicant have some time to look for and secure work, with such employment initially likely to be reasonably menial and modestly paid.
The respondent was concerned that by tying the cessation of maintenance to the applicant obtaining full time employment, this would disincentivise the applicant from finding full time employment promptly. He said this would be consistent with what he described as the applicant’s reluctance to seek a visa that would permit her to work or that her visa be expedited. I accept the applicant’s evidence about this issue – that she was extremely overwhelmed during the parenting proceedings, particularly during the pandemic. Her father was then unwell in 2021. She has been essentially forced to stay in a country in which she does not want to reside – separated from her family and other supports. She was also providing the bulk of the care to the parties’ young child. Additionally, when the outcome of the applicant’s relocation application was not known, she took the view that it was not prudent to require additional monies to be paid to expedite a visa that may, on her case, be redundant. Once the judgment had been delivered after the second parenting hearing, she did instruct the immigration lawyers to seek to expedite her visa.
In those circumstances it is understandable that obtaining employment – or requiring the respondent to pay for an expedited process – was not necessarily a priority for her. I also accept that the applicant is a resourceful and intelligent woman who wishes to develop her skills and rebuild her career and that she is motivated to do so. She is also keen to establish a standard of living for herself and the parties’ child that will enable her to provide the child with a range of interesting and stimulating opportunities. Accordingly, I am not concerned that requiring the respondent to continue supporting the applicant until she has full time work (or for a further six months) will prevent the applicant from doing all she can to find suitable employment as promptly as possible.
The weekly amount of maintenance will decrease to $400 per week when the applicant is generating an after-tax income for herself of $200 per week or more. I am also satisfied it is otherwise proper that the requirement for maintenance to be paid should end in six months. In my view that should give the applicant sufficient time to find employment and to commence any re-training she wishes to do, and to make any other changes to her living arrangements so that she can establish herself to live in Australia now that her visa has been granted.
I am satisfied that $600 per week, and then $400 per week once the applicant has employment in which she earns in excess of $200 per week after tax is adequate. It is modest, but not so modest as to be at a subsistence level. Taking the child support payment also into account, the applicant has been able to live reasonably on a similar amount for some time.
I am not persuaded that in addition to periodic fixed amounts of maintenance that the respondent should also pay for health insurance, psychologist’s costs or out of pocket medical expenses. Orders to that effect require the parties to remain entwined financially to an extent. Such orders are also likely to cause difficulties and conflicts – with disputes as to what is reasonable, or complaints about tardy or missed payments. Rather, I am satisfied that it is proper that the applicant be able to arrange her own financial affairs – and determine how she will apply the maintenance she receives. I note the applicant will also be able to utilise Medicare and avail herself of a Mental Health Care Plan now she is a permanent resident.
Lastly, I am satisfied that in the event the applicant does receive funding from Centrelink during the period she is also receiving periodic payment from the respondent, any maintenance paid by the respondent will be reduced by whatever amount he is required to reimburse to Services Australia. That will ensure that the respondent is not paying maintenance on top of reimbursing Services Australia if the applicant receives government support. This does not fall foul of s 90SF(4) of the Act. In the present case, the respondent would be required to reimburse the government as well as paying periodic maintenance – and in that way, the government benefit would in reality be being paid by the respondent.
Lump sum maintenance
I note the respondent’s proposal that the applicant continue to have the use of Motor Vehicle 1 either for 12 months, or until the liquidator seeks possession of it. It is not known how quickly that will occur – and if I made that order, the applicant would have no certainty as to how long she would have before the car was no longer available for her use. I note further that in his trial affidavit the respondent deposed that he was agreeable to transferring Motor Vehicle 1 to the applicant and that she could then sell the vehicle and retain the proceeds. His counsel said it was unclear whether that would still be possible – noting that the liquidator had disclaimed an interest in it.
The applicant does not wish to continue to have the use of Motor Vehicle 1 and it is apparent that it is relatively costly to maintain and/or repair.
In all the circumstances – and in light of the respondent’s apparent concession that the applicant should have a vehicle – I am satisfied that it is appropriate that the respondent provide the applicant with a lump sum maintenance payment of $12,000. She has the care of the parties’ child over eight nights each fortnight and it is reasonable that she have a motor vehicle to ensure the child is able to attend her various activities and commitments. She is also having to seek employment – and it is not unreasonable to expect that she will require transport to and from any workplace.
Contemporaneously with that payment being made to her, the applicant will be required to return Motor Vehicle 1 to the respondent. As noted, it appears the liquidator is not interested in the vehicle. The respondent’s evidence was that it could be sold for around $7,000 to $8,000.
ENFORCEMENT OF ORDERS
As set out, two of the applicant’s orders sought are more properly characterised as enforcement orders.
In relation to the applicant’s order sought that the respondent pay $7,020 being the unpaid psychologist’s fees:
(a)the order made on 1 April 2020 does not fix an amount to be paid, or a period it is to be paid for, nor does it define “regularly”;
(b)the order specified a particular psychologist. The applicant no longer attends that named psychologist;
(c)the order is expressed to be one made “by way of further facilitation of time spent”, although I am uncertain as to what that might mean; and
(d)when the first set of final parenting orders were made on 7 December 2022, Order 33 of those orders provided only that paragraph 4(a) of the orders made on 1 April 2020 remained in full force and effect. The order with respect to the payment of the applicant’s “out of pocket expenses to attend regularly on her psychologist” is Order 4(c) of the April 2020 orders. It was not re-made as a final order.
Dealing with the last of those points first, I accept there is clear authority that interim orders – as the orders made on 1 April 2020 undoubtedly were – are discharged upon the making of orders that finally determine the proceedings in which those interim orders were made; (see for instance Klewer v Official Trustee in Bankruptcy (No 2) [2010] NSWCA 258 and Fatimi Pty Ltd v Bryant & Ors [2002] NSWSC 750).
In relation to interim orders in family law proceedings, Nygh J in Millar & Millar (1983) FLC 91-326 at 78,218 held that the phrase “until further order” should be interpreted as meaning “an order which operates pending disposal” of the substantive application. That observation was made in relation to maintenance orders.
Similar observations were made in Keskin & Keskin and Anor (2019) FLC 93-932 at 79,364. Their Honours said in relation to an appeal regarding property orders that “any interlocutory orders… would be ipso facto discharged by the final orders determining the proceedings”.
In relation to parenting orders made “pending further order” Harper J said in Spencer & Squire (No.3) [2018] FCCA 2362 at [19]:
Orders expressed in such terms are generally understood as interlocutory orders which are intended to operate until the rights of the parties have been determined by the making of the orders disposing of the substantive proceedings.
Austin J made similar observations in Sadasivam & Seshan (2019) FLC 93-899. His Honour said at 78,947 that “all interim orders made in respect of the child during the litigation…were spent and discharged by the final parenting orders” made in that matter. He said whilst those interim orders were expressed to operate into the future, “they were undoubtedly still characteristically interim in nature”. Interlocutory orders, he said are:
…ipso facto discharged by determination of the action, since interim orders are only intended to regulate the parties’ conduct in one form or another until the action between them is finally determined according to law.
As noted, the proceedings were bifurcated on 6 September 2019. The order made provides that the applicant’s “application for an alteration of property interests…be heard separately”. It does not refer to the applicant’s application for maintenance.
It is not in dispute that when the applicant’s application to relocate was first heard in December 2019 the hearing was focused on parenting matters only. However, I note that orders made on 23 December 2019 included two orders by consent regarding financial matters. That included the order increasing the weekly payment from $250 to $400.
As already observed the April 2020 order suggests – by the way it is worded – that the payments are to ‘facilitate time spent’. That is, they appear to be orders made as part of a suite of parenting orders, rather than orders in the financial proceedings. Arguably, upon the final resolution of the parenting proceedings on 7 December 2022, Orders 4(b) and (c) of the April 2020 orders were discharged. There is force in this argument given that her Honour determined to specifically include that Order 4(a) was to remain in full force and effect, and she did not so in relation to Order 4(b) and/or (c). The fact that only Order 4(a) was re-made, and the other orders were not re-made must be given some meaning.
Conversely, I am not sure that the Court has the power to make orders in the terms of Orders 4(b) and (c) under Part VII of the Act. Accordingly, the orders must have been made under Part VIIIAB of the Act. The property and maintenance aspect of the applicant’s application was not finally determined upon the making of the orders in December 2022. Accordingly, the interim orders in so far as they provide for financial support arguably remain in full force and effect.
However, I do not need to resolve this issue. That is because I am satisfied that the respondent has met his obligation to cover the out-of-pocket expenses of the applicant’s regular attendances upon her psychologist. He put the applicant on notice in March 2024 – after paying for weekly appointments for almost four years – that he would no longer pay the psychologist directly. Instead, he was adding the $90 per week (to cover one session per fortnight at $180) to the applicant’s maintenance monies, so that the applicant could pay the psychologist herself. The order did not require the respondent to pay the psychologist directly. The applicant accepted the increased payment, but then did not pay the psychologist.
When the respondent became aware in July 2024 that the applicant had still not passed the funds on to her psychologist, the respondent again advised the applicant that the additional $180 he was paying her per fortnight was to cover the costs of the psychologist’s sessions. The applicant did not respond to that correspondence.
The order made on 1 April 2020 does not specify that the appointments need to be weekly. The applicant adduced no evidence from Ms AY that she requires weekly appointments. Fortnightly appointments, in my view, are “regular”, and taking all these matters into consideration, I am satisfied accordingly that the respondent has discharged his obligations pursuant to the order. There is, therefore, no outstanding amount owing by the respondent for psychologist’s fees.
The applicant also seeks the respondent reimburse the sum of $1,564 to the BO Foundation who shouldered the payment of service work undertaken on Motor Vehicle 1 in about February 2024. The applicant says this is a breach of the orders made 12 October 2017 which required the respondent to meet those costs.
I am satisfied that this is a liability for which the respondent should be responsible. Whilst he informed the applicant that he did not have the funds to meet the costs of repairs, the order requiring him to meet the costs of servicing the vehicle remained in effect at the time the cost was incurred. The order was made prior to the bifurcation of the proceedings. I am only now finally dealing with the financial proceedings.
It is trite to observe that upon the making of these final orders, all interim financial orders are discharged.
IS IT JUST AND EQUITABLE THAT AN ORDER BE MADE?
Before I make any order pursuant to s 90SM(3) of the Act I must first be satisfied that it is just and equitable that I do so. This was made plain by the High Court in Stanford v Stanford (2012) 247 CLR 108. In that matter their Honours were dealing with an application brought under s 79 of the Act. Their comments are equally applicable to an application made pursuant to s 90SM of the Act.
If I am satisfied it is just and equitable to make any order, I am then empowered to make such order as I consider appropriate taking into account a number of factors as set out in ss 90SM(4) and 90SF(3) of the Act, insofar as they are relevant.
Their Honours said the expression “just and equitable” [36]:
… is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds. And while the power given by s 79 is not "to be exercised in accordance with fixed rules", nevertheless, three fundamental propositions must not be obscured.
(citations omitted)
Those three fundamental propositions are as follows.
First, the Court must identify the existing legal and equitable interests of the parties in the property. I have already done so in considering the maintenance application.
Secondly, at [39]:
Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is "just and equitable" to make the order is not to be answered by assuming that the parties' rights to or interests in marital property are or should be different from those that then exist. All the more is that so when it is recognised that s 79 of the Act must be applied keeping in mind that "[c]ommunity of ownership arising from marriage has no place in the common law".
(citations omitted)
Thirdly, their Honours stated at [40]:
whether making a property settlement order is "just and equitable" is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised "in accordance with legal principles, including the principles which the Act itself lays down”. To conclude that making an order is "just and equitable" only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.
(citations omitted)
At [41] their Honours further observed that the Court must have “a principled reason for interfering with the existing legal and equitable interests of the parties”.
There is, accordingly, no assumption that the applicant is entitled to have the property divided between herself and the respondent.
For the reasons that follow, I am not satisfied that there is any principled reason to interfere with the existing interests of the parties. Nor am I satisfied that it is just and equitable for any order altering those rights and interests to be made.
The parties lived together for less than a year. The respondent at the commencement of the very brief relationship owned his interest in BK Street – which he continues to own. He also owned a business – which is now in liquidation. He has since commenced another business.
The applicant made no financial contributions to the real property or to the respondent’s business. She does not depose to having made any financial, non-financial or other contributions to the asset pool. She also does not depose as to what homemaker contributions she made during their cohabitation.
The parties separated after their child was born. Accordingly, the applicant’s contribution as a parent prior to separation were limited.
It is accepted that post separation the applicant has made significant parenting contributions. She was the primary carer of the parties’ child when the parties first separated. It is not in dispute that she has been a diligent and child focussed parent. The child’s time with her father has gradually increased. Currently, the parties have an almost shared care arrangement – with the child spending eight nights a fortnight with her mother, six nights a fortnight with her father and spending equal time with each of them over holiday periods.
The respondent’s post separation financial contributions to the applicant are also significant. I have already referred to payments made by him which included he has provided considerably more child support than he would have been assessed to pay. The applicant has also had the use of a vehicle, and he has met the costs associated with the registration and maintenance of that vehicle.
In addition, he has paid $83,000 towards the applicant’s legal fees.
As already observed, I am satisfied the respondent’s family provided him with significant funds to meet legal fees – both for himself and for the applicant, and to assist him to make other payments for the benefit of the applicant.
On her behalf, the respondent has also paid:
(a)$46,617 to the immigration lawyers engaged to secure the applicant’s visa;
(b)$43,600 for the Visa; and
(c)$10,000 “assurance of support” payment to Services Australia.
However, as already acknowledged, I accept that these monies were paid to ensure the applicant could remain in Australia – despite that it was not her wish that she do so. Nevertheless, they are amounts that have been paid to secure a visa in the applicant’s name.
In addition, the respondent has met medical expenses and provided funds for the applicant to attend upon a psychologist (although as noted there is some dispute in this regard). He has also met the costs of Single Expert reports and the costs of the Single Expert to give evidence.
The payments for the support of, and for the benefit of the applicant were made in the context of the applicant having been unable to work or access Medicare. Both of those issues have now been resolved.
I have also determined that the respondent will continue to make maintenance payments towards the support of the applicant – partially by way of a lump sum payment, and partially by way of periodic payments. These payments will provide the applicant with the ability to purchase a vehicle and ensure her a reasonable standard of living for a period of up to six months whilst she attends to obtaining suitable employment.
Taking all of these matters into account, I am not satisfied that it is just and equitable that any order adjusting property interests be made.
For all of the foregoing reasons, I make the orders as are set out.
I certify that the preceding one hundred and forty-two (142) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter. Associate:
Dated: 8 April 2025
0
4
3