Kenzou & Suriya [2025] FedCFamC1F 791 (10 November 2025)

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 the pseudonym Kenzou & Suriya has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These are property proceedings between the applicant husband, Mr Kenzou, and the respondent wife, Ms Suriya. Mr Kenzou commenced the proceedings on 24 May 2024. He has since filed an Amended Initiating Application and a Second Further Amended Initiating Application. Ms Suriya filed a Further Amended Response on 5 May 2025. In that Response, she sought an order that Mr Kenzou provide security for her costs by paying into Court the sum of approximately $100,000, or such other amount as the Court thinks fit. She also sought that the proceedings be stayed until the security is given. The proceedings were transferred to Division 1 on 24 June 2025. Ms Suriya's application for security for costs was heard by me on 17 July 2025. The application was heard "on the papers". Further oral submissions were made on 20 October 2025. These Reasons deal with the application for security for costs.
2. Mr Kenzou gives evidence that he has no property, superannuation nor income. Ms Suriya gives evidence that her only property is a small amount of superannuation, modest funds held in bank accounts, a car and the equity in a house registered in her sole name which has not yet been valued. She estimates the equity in the home to be about $460,000.
3. In the unusual circumstances of this case, and for the reasons set out below, I make an order that Mr Kenzou pay $50,000 to Ms Suriya's solicitors' trust account by way of security for costs.
4. The application for security for costs is made in the following uncontested circumstances:

(1) Mr Kenzou has been incarcerated since early 2023 after he attacked Ms Suriya with a knife, resulting in stab wounds. Ms Suriya remained in hospital due to injuries sustained.

(2) After he attacked her with a knife, Mr Kenzou damaged Ms Suriya's personal property. She learnt about the damage after she was released from hospital and returned home.

(3) Mr Kenzou was initially charged with attempted murder of Ms Suriya and various other offences.

(4) In 2024, he pleaded guilty to three offences, being: contravening an Apprehended Domestic Violence Order; breaking and entering the home of Ms Suriya and damaging property; and wounding Ms Suriya with intent to cause grievous bodily harm (domestic violence).

(5) In 2025, he was sentenced to a total aggregate sentence of five years and nine months imprisonment from 2023, to expire in 2029. A non-parole period of three years and six months was fixed, such that Mr Kenzou will become eligible for parole in 2026.

(6) Mr Kenzou is not a citizen of Australia, and it is likely that, upon completion of his sentence, he will be deported to Country B because of the operation of the character test which applies by virtue of s 501 of the Migration Act 1958 (Cth).

(7) On 8 May 2020, Mr Kenzou and Ms Suriya entered into what purports to be a financial agreement pursuant to pt VIIIA of the Family Law Act 1975 (Cth) ("the Act"). This document provided broadly for them each to retain what they had. That purported agreement is said to have been entered into pursuant to s 90C of the Act (that is, while the parties were separated but still married). In fact, the parties were divorced in April 2020, and so the agreement should have been one entered into pursuant to s 90D of the Act.

(8) When Mr Kenzou filed his Initiating Application on 24 May 2024 seeking property adjustment orders, he made no reference to this agreement - and in answer to the question "Have the parties entered into a financial agreement?", marked "no". This Initiating Application had been translated for him by an accredited translator and interpreter in English and Language C.

(9) The parties commenced living together in 2013, and were married that same year. Ms Suriya says that the parties separated in January 2019 (so a relationship of less than six years, although with cohabitation as a couple only for four). Mr Kenzou says that the parties separated in November 2022 (so a relationship of about nine years). Ms Suriya gives evidence that the parties divorced in early 2020 on her sole application, but that she did not realise a divorce order had been made at the time. Mr Kenzou gave evidence that he did not realise an application had been made.

(10) On 24 June 2025, Mr Kenzou's interlocutory application to restrain Ms Suriya from dealing with the only property that she owns was dismissed. A costs order was made in favour of Ms Suriya in the amount of $4,011.98. That payment was to be made by 25 August 2025. Mr Kenzou has not complied with that order.

(11) By the Second Further Amended Initiating Application filed 9 May 2025, Mr Kenzou seeks that he be granted leave to commence the proceedings out of time, and that the purported Financial Agreement be set aside on the alternate grounds of fraud, that it is void, voidable or unenforceable, or that there were circumstances of unconscionability. He does not seek a declaration that the Financial Agreement is not binding - notwithstanding his evidence to the effect that the requirements of s 90G of the Act were not complied with.

(12) Mr Kenzou's Costs Notices reveal that his daughter has been paying his legal costs from "savings". An affidavit filed by her in relation to this application is to the effect that she has borrowed money to pay Mr Kenzou's costs and cannot lend him anything more. I was told from the bar table that he would only be able to continue the litigation because his legal representatives were acting on a deferred basis.

(13) Notwithstanding the evident complexity of the issues, by the Costs Notice filed 17 June 2025, Mr Kenzou's solicitors estimated that his costs to the conclusion of a final hearing would be $45,000, including counsel's fees. On 17 July 2025, I ordered that an amended Costs Notice be filed with a realistic estimate of the costs of running the matter to a final hearing. That amended Costs Notice provided an estimate of $95,000 plus the costs of expert valuation reports to the conclusion of a final hearing. Mr Kenzou has already incurred close to $100,000 in fees to date, most of which remain unpaid.

(14) The Costs Notice filed on behalf of Ms Suriya reveals an estimate of incurred and future legal costs of approximately $184,000.

1. The usual rule in family law proceedings is that each party is to bear their own costs. However, provided there are circumstances that justify it in doing so, a Court may make any order for costs and/or security for costs. In deciding whether it is just to make an order for security for costs, I must consider the factors set out in s 114UB(3) so far as they are relevant (including as they are relevant to the prospects of the applicant ultimately obtaining an order for costs) and r 12.02 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules"), which more specifically addresses the factors relevant to security for costs.
2. Section 114UB(3) provides:

(3) In considering what costs order (if any) should be made, the court must have regard to the following:

(a) the financial circumstances of each party to the proceedings;

(b) whether any party to the proceedings is receiving assistance by way of legal aid in respect of the proceedings and, if so, the terms of the grant of the assistance to that party;

(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting paragraphs (a) and (b), the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters, and in relation to their duty of disclosure under subsection 71B(1), 90RI(1) or 90YJA(1);

(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;

(f) whether a party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer;

(g) such other matters as the court considers relevant.

1. Rule 12.02 of the Rules provides:

12.02 Application for security for costs

(1) A respondent may apply for an order that the applicant in the proceeding give security for the respondent's costs.

(2) In deciding whether to make an order, the court may consider any of the following matters:

(a) the applicant's financial means;

(b) the prospects of success or merits of the application;

(c) the genuineness of the application;

(d) whether the applicant's lack of financial means was caused by the respondent's conduct;

(e) whether an order for security for costs would be oppressive or would stifle the proceeding;

(f) whether the proceeding involves a matter of public importance;

(g) whether a party has an order, in the same or another proceeding (including a proceeding in another court), against the other party for costs that remain unpaid;

(h) whether the applicant ordinarily resides outside Australia;

(i) the likely costs of the proceeding;

(j) whether the applicant is a corporation;

(k) whether a party is receiving legal aid;

(l) any other relevant matter.

(3) In subrule (1):

respondent includes an applicant who has filed a reply because orders in a new cause of action were sought in the response.

1. Ultimately, the question for me is whether it is in the interests of justice for an order for security for costs to be made. As the Full Court stated in Luadaka & Luadaka [1998] FamCA 1520; (1998) FLC 92-830 ("Luadaka") at [62], "[t]he purpose of an order for security is to secure justice between the parties by ensuring that an unsuccessful party does not occasion injustice to the other".
2. Applications for security for costs outside of the appeal context are unusual in this jurisdiction. That is explicable largely by reference to the rule that, unlike in many other jurisdictions, costs do not follow the event.
3. In the unusual circumstances of this matter, and for the reasons set out below, I am satisfied that there are circumstances such that the making of an order for security for costs will serve the interests of justice.
4. Telling against the making of the order is that it is probable that an order for security for costs will stifle the litigation, because Mr Kenzou gives evidence that he does not have any financial resources from which to pay a sum by way of security for costs, and his daughter gives evidence that she is not able to support him further. That is relevant pursuant to r 12.02(2)(e) and is an important consideration for me because poverty must not be a bar to justice (Luadaka at [62]). It does not, however, decide the matter (see the authorities referred to in Luadaka at [62.4]). Further, impecuniosity is not a bar to the making of an order for costs (Lenova & Lenova (Costs) [2011] FamCAFC 141 at [12], cited with approval by the Full Court in Charisteas & Charisteas (No 2) [2023] FedCFamC1A 10 at [5]; see also Nada & Nettle (Costs) (2014) FLC 93-162).
5. Mr Kenzou's conduct of the litigation is relevant pursuant to s 114UB(3)(c). So far, it falls short of what the Court expects, even allowing for the fact that Mr Kenzou has the disadvantage of being incarcerated:

(a) there was no engagement by him in pre-action procedures;

(b) the initiating application made no reference to the financial agreement and did not seek any relief in respect of it;

(c) Mr Kenzou has already amended his relief on a number of occasions;

(d) Mr Kenzou has either failed to file or been late in filing on five occasions;

(e) Mr Kenzou has not complied with the requirements of full and frank disclosure (so much is admitted in the Case Outline filed on his behalf on 15 July 2025).

1. Mr Kenzou's prospects in these proceedings and the merits of his application are relevant pursuant to r 12.02(b). At this stage, his prospects appear poor:

(a) He does not seek a declaration that the financial agreement is either not a relevant financial agreement or not binding. He may, of course, amend his relief prior to that matter being determined.

(b) A solicitor acting for Mr Kenzou signed a "Certificate" of legal advice in conformity with s 90G of the Act which is annexed to the financial agreement. The recitals to the financial agreement confirm that each of the parties received the relevant legal advice.

(c) Mr Kenzou gives evidence to the effect that the requirements of s 90G were not complied with. He gives evidence to the effect that the solicitor acting for Mr Kenzou and the solicitor acting for Ms Suriya acted improperly, that he did not understand what he was signing, that he received no advice and various other matters. That is all highly improbable.

(d) The Court has power to make an order pursuant to s 90G(1B) declaring that the financial agreement is binding. It may well do that in circumstances where it is satisfied that the relevant legal advice was given on the basis that the agreement was one entered into after separation but before divorce, given that the relevant legal advice is unlikely to be different in substance whether the parties are separated or divorced.

(e) In relation to his application that the financial agreement be set aside, the evidence which Mr Kenzou brings in support of allegations which go to fraud, whether the agreement is void, voidable or unenforceable, and unconscionability is weak, at best. It is to the effect that he was a victim of manipulation by Ms Suriya, her lawyer and his lawyer. That sits uncomfortably with what is likely and with what is known of his conduct in early 2023. He may, of course, file further evidence, but at this stage his prospects of successfully having the financial agreement set aside (if it is found to be binding) appear poor.

(f) Even if the financial agreement was found not to be binding or was set aside, there is a significant question as to whether a property adjustment, whereby Mr Kenzou would receive anything, would be found to be just and equitable in these proceedings. That would mean that there would be nothing from which Mr Kenzou could pay a cost order.

(i) In evidence (although untested) was a psychological report of clinical psychologist Ms E, who deposes:

It is my opinion that Ms [Suriya's] symptoms are consistent with the diagnostic criteria of Major depressive disorder, Generalized anxiety disorder and PTSD. Her symptoms are primarily contributed by the physically [sic] attack by her ex-husband, Mr [Kenzou]. Her prognosis is poor and she needs to receive long term and intensive therapy. The symptoms have caused clinically significant impairment to her cognitive, occupational, social and daily functioning. Due to the severity of the symptoms and the external environment, her future work capacity will be minimal. Currently, she has no working capacity.

(ii) Part VIII of the Act now requires family violence to be taken into account both in assessing contributions (s 79(4)(ca)) and in assessing current and future financial circumstances of the parties (s 79(5)(a)). In a small pool such as this, and where a party has been significantly injured with impacts on her future earning capacity, an outcome where Mr Kenzou receives nothing is probable, even if he is found to have made significant contributions (which is contested by Ms Suriya) and taking into account the fact that Mr Kenzou has health problems and will likely have no income nor assets himself.

(iii) Ms Suriya has a strong prima facie case for damages for personal injury arising from Mr Kenzou's conduct towards her. While her application does not currently extend to such relief, it may be that it is amended if the matter proceeds that far and the Court may determine that it has accrued jurisdiction to deal with it. In that case, the prospects of Mr Kenzou receiving anything at all are very poor.

1. Relevant pursuant to r 12.02(2)(g) is the fact that Ms Suriya has an order against Mr Kenzou for costs that remains unpaid. Mr Kenzou has already been unsuccessful in obtaining the interlocutory relief he seeks, has been ordered to pay Ms Suriya's costs, and has not yet made that payment- even in the face of this application.
2. Whether Mr Kenzou ordinarily resides outside Australia is relevant pursuant to r 12.02(2)(h), as the fact that a party does not reside in Australia is likely to make the recovery of any costs order more difficult and costly. While Mr Kenzou currently resides in Australia, he is likely to be deported upon the conclusion of his sentence, and this is a factor I take into account.
3. I have considered the medical evidence tendered on behalf of Mr Kenzou which was said to go to his reduced moral culpability in respect of the crime, and evidence which was said to be of his remorse. Even if that evidence was accepted, reduced moral culpability and/or remorse would not affect the property adjustment exercise, nor the outcome of any personal injuries claim (save perhaps in relation to whether exemplary damages would be awarded). It is not a relevant matter pursuant to s 114UB(3)(g) of the Act nor r 12.02(2)(l). In any case, I note that, while he expressed remorse in the sentencing proceedings, his affidavit relied on for the purposes of responding to the application indulged in self-pity and sought to justify and explain his behaviour and blame Ms Suriya. He also attempted to mutualise what occurred by giving evidence that: "We then had a big argument. we [sic] were involved in a physical confrontation." The Statement of Agreed Facts describes an attack by Mr Kenzou on Ms Suriya - not a "physical confrontation." Further, the Statement of Agreed Facts records Mr Kenzou in his ERISP stating, among other things that "[h]e was very fond of his ex-wife but she left him and it was too much for him to bear" and "[b]efore the victim delivered his belongings, he told the victim he wished to get back together, and she said she did not want to. This made him very angry and his mind was blank."
4. I do not accept the submission that the evidence supports that Mr Kenzou's lack of financial means has been caused by Ms Suriya's conduct in respect of the financial agreement. Mr Kenzou has not been in receipt of legal aid in respect of these proceedings.
5. This is a matter in which the costs may be significant because of the need to resolve the financial agreement issue and, if the financial agreement is found not to be binding or is set aside, the substantive application. I note that, while these are proceedings in which s 102NA of the Act applies and in respect of which Ms Suriya could make an application to the Commonwealth family violence cross examination scheme, there are limits to the assistance that the scheme makes available and it is only made available just prior to a hearing at which cross examination will occur.
6. Ms Suriya is undoubtedly the victim-survivor of Mr Kenzou's violent attack on her. Unless costs are secured, she faces the prospect of losing her only asset defending this litigation commenced against her by Mr Kenzou, and even if she is entirely successful in defeating his claim. That cannot be in the interests of justice and indeed would represent the Court having been used to perpetrate "systems abuse" (see National Domestic and Family Violence Bench Book, 3.1.11). There are justifying circumstances for the making of an order for security for costs.
7. Ms Suriya seeks the sum of $100,000 be paid into Court by way of security for costs and that the proceedings be stayed pending the making of the payment. I am satisfied that $50,000 is an appropriate amount at this stage, noting that the financial agreement issues may well be determined initially and separately and in her favour. That sum will be required to be paid to the trust account of Ms Suriya's lawyers. Mr Kenzou should have three months to make the payment. After that, the matter will be relisted before me so that it can be progressed towards a final resolution.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Behrens.