Agron & Agron
[2025] FedCFamC1F 359
•30 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Agron & Agron [2025] FedCFamC1F 359
File number: BRC 1401 of 2025 Judgment of: MCGUIRE J Date of judgment: 30 May 2025 Catchwords: FAMILY LAW – PROPERTY – Interlocutory application by wife seeking litigation funding or a partial property settlement – Application opposed by husband – Application dismissed
FAMILY LAW – PROPERTY – Application for injunction by wife to prevent husband from removing livestock from a property – Application opposed by husband – Application granted where court satisfied it is convenient to grant an injunction
Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 117, 117(1) and (2) and 117(2A)
Cases cited: Harris & Harris (1993) FLC 92-378; [1993] FamCA 49
Salvage & Fosse (2020) FLC 93-666; [1980] FamCAFC 144
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466; [2009] FamCAFC 166
Zschokke & Zschokke (1996) FLC 92-693; [1996] FamCA 79
Division: Division 1 First Instance Number of paragraphs: 54 Date of hearing: 20 May 2025 Place: Darwin: delivered Brisbane Counsel for the Applicant: Mr Dunlop Solicitor for the Applicant: Barry Nilsson Lawyers Counsel for the Respondent: Mr McGregor Solicitor for the Respondent: Evans Brandon Family Lawyers ORDERS
BRC 1401 of 2025 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS AGRON
Applicant
AND: MR AGRON
Respondent
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
30 MAY 2025
THE COURT ORDERS THAT:
1.Ms Agron’s (“the wife’s”), application for litigation funding/partial property settlement filed 9 April 2025 be and is hereby dismissed.
2.UNTIL FURTHER ORDER Mr Agron (“the husband”) or any person on his behalf be and is hereby restrained from removing or moving the wife's livestock from the “[C] ” Property without the specific written consent of the wife or Court order.
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 Agron & Agron has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
REASONS FOR JUDGMENT
McGUIRE J:
APPLICATIONS
There are substantive property settlement proceedings between the parties where the next step seems to be participation in a mediation. The husband is the applicant in the substantive proceedings. The wife is the respondent.
The wife is now an applicant in an interlocutory application seeking various orders pursuant to s 117 of the Family Law Act 1975 (Cth) (“the Act”) for litigation funding or, alternatively, a partial property settlement both in a quantum of $140,000.
In addition, the wife asks for an injunctive order to restrain the husband from removing the wife’s livestock from a property leased by the husband known as “[C] ” Property on which the wife currently agists hundreds of head of livestock.
The husband opposes all of the orders sought by the wife but will accede to an order that he not remove the livestock from “[C Property]” without 30 days prior notice to the wife.
BACKGROUND
The husband is 47 years of age and operates a significant livestock business through various corporate and trust entities.
The wife is 42 years old and lives on the property, “[D Property]”, purchased in 2022 being shortly before the parties’ separation. The title is registered in the wife’s sole name or an entity controlled by her. The property was purchased with the assistance of a mortgage loan of $1.825M which has since been paid out by the husband following separation leaving it as an unencumbered property.
The parties commenced cohabitation in 2002 and married in 2006. They separated in September 2022 and hence the relationship endured for approximately 20 years.
There are two children of the marriage namely X, aged 17 years, who is at boarding school and Y, aged 15 years, who is home schooled and lives primarily with the husband.
The husband’s sworn Financial Statement of 31 January 2025 deposes to an income of $2,885 per week gross and expenses of $2,970 per week. He deposes to assets at value of $46,300,000.
Documents tendered by the wife disclose the husband making an application for a loan or refinancing contemporaneously with the swearing of his Financial Statement in these proceedings. That document discloses the husband’s net asset position at $68,040,151 from gross assets of $74,509,500 or a 91 per cent equity. That business plan proffered in support of the loan application also anticipates drawings of $42K per annum but not including “vehicles, fuel, phone, electricity BTC” to be met by the corporate/trust entity but still a cash flow surplus and forecast growth in livestock with a net forecast profit of $386K per annum. That same document shows a negative profit/income for the last financial year but profitable in the previous two financial years.
The wife relies on an affidavit of Mr B who is the principal of the solicitor’s firm instructed by the wife. He deposes at [4] to the wife being billed $37,860.75 in these proceedings with $16,700.20 remaining unpaid with $9,171.25 unbilled work in progress. He estimates further costs and disbursements up to and including a private mediation of between $66,595 to $113,927 in addition to the current unbilled and outstanding fees of $25,871.45.
The wife’s sworn financial statement deposes to a gross weekly income of $3,917 with expenses of $4,397. She deposes to property owned through her trust at value of $2,705,889 comprising of the unencumbered property at “[D Property]”, livestock, plant and equipment and including bank account balances then at $78,782.74.
The husband has re-partnered. There is no evidence that the wife has re-partnered in any financially dependent or supported way.
RELEVANT LAW – LITIGATION FUNDING/PARTIAL PROPERTY SETTLEMENT
The wife brings her application for advancement of $140,000 from the husband under two alternative heads of power. Firstly, she argues to the cost provisions of s 117 of the Act or, alternatively, by a partial property settlement payment with reference to subsections 79 and 80(1)(a) of the Act where the effect of the orders sought are the same and likely ramifications on any final property order likely to be similarly taken into account, the considerations are nevertheless discreetly different.
Section 117(1) of the Act provides a general rule that each party to proceedings pay his or her own legal costs. The general rule is, however, subject to a discretion at subsection (2) being available for a Judge to make an award of costs to a party if there are “justifying circumstances”. It is well-established that the term “justifying circumstances” is not to be read as synonymous with “extraordinary circumstances”. It is also well established that s 117 of the Act is the appropriate and available power for consideration of an order for “litigation costs”.
In determining whether there are justifying circumstances and whether the broad discretion available to the Court is to be exercised, the Court is to reference each of the factors under s 117 (2A) of the Act although in an application for litigation funding not all of these will be relevant.
In Salvage & Fosse[1] the Full Court observed:
14.The critical question therefore is whether the applicant has “any real prospects of obtaining justice unless the order sought is made” …, or in terms of s 117(2) of the Act, whether in all the circumstances the costs order is just. That question raises, at least, consideration of the strength of the applicant’s case and the effect of the order upon the respondent.
[1] (2020) FLC 93-666; [2020] FamCAFC 144.
Alternatively, the applicant seeks a partial property settlement and also in the quantum of $140,000. Although the argument appears to be based on a need for litigation funding, the consideration here is one against historical authorities suggesting the need for showing compelling circumstances to justify a partial settlement. More recent authority,[2] however, appears to have eased this requirement and the applicant’s circumstances need not be compelling[3] although it remains for an applicant to make out a case with an evidentiary basis of appropriateness in order to persuade a favourable discretion to an applicant.
[2] Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466; [2009] FamCAFC 166.
[3] Harris & Harris (1993) FLC 92-378; [1993] FamCA 49.
The discretion for the Court on either argument is a broad one but where sufficient authorities assist me in isolating some factors to consider including:
(i)the ability of an applicant to meet his or her own litigation costs;
(ii)the ability of an applicant to source alternative finance for litigation;
(iii)the ability of the relevant respondent or respondents to contribute to an applicant litigation costs;
(iv)the complexity of the proceedings;
(v)the stage of the proceedings reached when the application is brought, including:-
(a)the proximity to trial;
(b)the timeliness or delay in bringing the application;
(c)whether the making of an order would bring delay upon the trial with consequent prejudice to any other parties; and
(d)any prejudice to the respondent’s, generally, who of course must also be accorded procedural fairness and justice in any balancing of such matters were prejudice is claimed by an applicant;
(vi)the prima facie merits of the substantive case; and
(vii)the nature and extent of the property pool and whether any such order can be attended to without bringing prejudice to a respondent in the sense that the substantive orders might eventually cover any advances made by way of litigation funding or are capable of our being “reversed”.[4]
[4] Zschokke & Zschokke (1996) FLC 92-693
THE EVIDENCE
The matter proceeded on the papers with helpful submissions of counsel for each of the parties, but where the evidence was not tested by cross-examination and hence some issues of credit or disputed fact may not be able to be resolved at this interlocutory stage.
It remains, however, for an applicant to prove his or her case to the requisite standard of proof being on the balance of probabilities.[5] Similarly, as is generally the case, a party making an assertion of fact carries an onus to prove that fact of the balance of probabilities.
[5] Evidence Act 1995 (Cth) s140
The wife relies on her affidavit sworn 9 April 2025 and her Financial Statement sworn the same day together with the affidavit of Mr B affirmed 9 April 2025.
Mr B deposes that pursuant to a costs agreement should the applicant fail to meet any future rendered invoices then the firm will not be in a position to continue to act for her.
The wife deposes at [56] – [57] that during 2024 she was removed by the husband as a trustee of the E Trust being effectively the management tool for the husband’s farming enterprises. Her previous status of beneficiary also effectively ended.
At [60] and [61] the wife deposes to the husband’s disclosed income of $150,020 per year but argues that documents tendered have been prominently the husband’s own application for refinancing suggests substantial additional trust profits including, for instance, for the year 30 June 2022 of $6,903,397 and $1,520,512 in the next year. Counsel for the wife submits that the last years negative financial results should be seen within the context of both stock retained in that year together with the husband’s application for refinancing which shows a more optimistic viewpoint for the coming financial year. The force of that submission is as to the husband’s ability to meet the order sought by the wife in the sum of $140,000.
At [63] the wife references her own Financial Statement which prima facie shows a deficit of expenses over income and that she has had to sell livestock to meet any shortfall.
At [83] the wife confirms that the “[D Property]” mortgage has been paid out by the husband in about early 2025 and then relieves her of mortgage payments of $120,000 annually.
At [89] the wife confirms the husband’s agreement to meet at first instance the costs of single experts’ reports and of the mediator.
The wife’s Financial Statements as of 9 April 2025 disclosed gross and net assets in her hands at value of $2,692,782 including $78,782 in bank balances.
The husband relies on his affidavit of 1 May 2025 and his Financial Statement sworn 31 January 2025.
The husband’s affidavit confirms that he has:-
(i)paid out the wife’s mortgage of $1,825,000 in about early 2025;
(ii)agreed to meet the mediator’s fees estimated at $8,800; and
(iii)agreed to meet, or has paid, at first instance the experts’ costs of $27,500 and $24,484.
The husband says that he is attempting to refinance debt as referenced in the documents tendered by counsel for the wife. He says that his current overdraft facility is fully drawn.
The balance sheet accompanying the husband’s application for refinance provides detail as to the husband’s assets and liabilities. His assets appear limited to real property, plant and equipment, and stock. The husband discloses no liquid funds over and above his overdraft facility.
The husband says that since separation the wife has elected to spend significant monies of a discretionary nature and is evidenced in the list of assets set out in her Financial Statement and says further that many of these were not necessary expenditures.
The husband’s sworn Financial Statement is sparse on detail but discloses no liquid funds or savings.
FINDINGS & CONSIDERATIONS
There is no doubt that prima facie the husband is now in a far superior position than the wife in respect of assets-in-hand pending a final alteration of the parties’ property interests where on the best evidence he perhaps holds assets at net value of $68,040,151 against the wife’s gross and net asset position of $2,692,782. This is, however, not the test in an application for either litigation funding or partial property settlement and if it were to be the test then these Court’s would be inundated with partial property or similar applications where the fundamental policy of the Courts and the legislation remains one of a single and final alteration of property interests.
On the evidence, untested as it is, I am comfortably satisfied that the quantum of $140,000 sought by the wife would sit easily within the ambit of the parties’ respective arguments and likely achievable by the wife given a twenty year relationship, two children of the marriage, and the limited evidence now available as to contributions. Taking the husband’s refinancing proposal as the best evidence of his financial position, it is open for the Court to find that he currently holds approximately 96.2 per cent of the property pool and the wife just 3.8 per cent. Again, however, this is neither the test for litigation funding/partial property settlement and nor of itself determinative of the issues, although it is validly arguable that a party should not be disadvantaged in the conduct of his or her case by the other party being in possession of all or the majority of the assets of the marriage and pending settlement.
Relevantly here it can be argued that the husband has already contributed to the costs of the wife’s conduct of the litigation. Whilst only at first instance and reserving his right to argue costs holistically or specifically, the husband has met the considerable costs of the experts’ reports (E$52,000) and agrees to meet the costs of the mediator ($8,800).
The wife's own financial position is relevant to her ability to meet her own litigation costs. Relevantly the husband has relieved the wife of an expense of $30,000 per quarter or $120,000 per annum mortgage payments from about early 2025 and where on the wife’s evidence she now has an unencumbered property on which she resides and which assists her in earning income.
The husband’s unchallenged evidence is that he meets the costs of the children support where one child lives primarily with him and the other attends boarding school.
Relevantly the wife’s affidavit is silent as to any attempts by her to finance her own litigation either by borrowing privately or, against assets she now has in her possession including an unencumbered home, or by a commercial litigation funder.
Whilst I accept that the bulk of the assets sit in the husband’s hands, the wife herself holds assets of some $2.7M and without any or any substantial debt. Conversely, the husband’s assets do not include liquid funds. His unchallenged evidence is that his overdraft is fully drawn. It follows, therefore, that the husband would be required to crystallise assets, and most likely stock, in order to fund any order in favour of the wife. On the evidence, this option is also available to the wife who also, of course, currently carries cash reserves of more than $78,000 whereas the husband has none or minimal cash.
Taking all of these matters into account, therefore, and on the balance of probabilities, I am not persuaded that the wife has discharged her onus towards an order for either litigation funding or partial property settlement to be paid by the husband and where I place considerable weight on the husband’s recent and pending commitment to payments towards experts’ reports and the mediation; the dearth of evidence of the wife’s attempts to obtain finance from other sources to meet her own litigation costs; and the probability that the husband would need to sell stock to finance any orders where such facility is also available to the wife.
Consequently, the wife’s application in the alternative for litigation funding or a partial property settlement is dismissed.
Secondly, the wife seeks an injunctive order to restrain the husband from removing the wife’s livestock from a property, the “[C]” Property, where they have been adjusted.
The husband opposes the order. He was asked whether he would give an undertaking in the terms of the orders sought? He refused. The husband leases “[C Property]”. The current lease expires in late 2025. The material before the Court suggests that the husband intends to and is optimistic of renewing the lease.
“[C Property]” comprises multiple available paddocks. The wife’s unchallenged evidence is that she utilises just one of those paddocks for her hundreds of head of livestock.
The evidence satisfies me that the wife’s substantial source of income is derived from the livestock business. The wife says, and I accept, that her property “[D Property]” cannot cater for her livestock.
The wife’s affidavit deposes to the considerable transport costs and other costs should she be required to relocate the livestock from “[C Property]” and hence this argument is inherently intertwined with the above argument for a partial property settlement.
The wife says that the husband has recently made a threat or threats to unilaterally remove her livestock from the ‘[C Property]’ where I am satisfied that a status quo of sorts now exists in the wife’s use of that property to assist her income.
The husband’s affidavit at [73] deposes:
I am content for the wife to leave her [livestock] where they are presently being the leased [C Property] and I will not cause the removal without first providing the wife 30 days written notice …
The husband's affidavit references his own desired use of the paddock utilised by the wife and also as to the pending renewal of the lease.
Importantly in my view the unchallenged evidence of the wife is that she has been subjected to at least one threat of unilateral and immediate removal of her livestock from the property leased by the husband. This threat sits uncomfortably with the husband’s evidence that he would now agree to a 30 day notice period. Any removal of the livestock would cause the wife substantial costs and perhaps activate further litigation for partial property settlement or similar. The wife derives her income, at least in large part, from the livestock agisted on that property. A form of status quo has been established.
In all of those circumstances but with some emphasis on the husband’s previous threat, I am satisfied that there are grounds made out for the injunctive orders sought by the wife and I will accordingly.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 30 May 2025
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