Bennison and Bennison (Formerly Bronson and Bronson) - [2013] FamCA 11

FAMILY COURT OF AUSTRALIA

BENNISON & BENNISON (FORMERLY BRONSON & BRONSON)

[2013] FamCA 11

FAMILY LAW - PROPERTY - Where the Applicant Wife seeks $116,000 to fund litigation expense – Where the lowest estimate of the net value of the property “pool” is $4,700,000.00 – Order sought pursuant to power to make an order as to costs or alternatively as an interim property order

Family Law Act 1975 (Cth)

Penfold v Penfold (1980) 144 CLR 311
Strahan & Strahan(interim property orders) (2011) FLC 93-466
Zschokke & Zschokke (1996) FLC 92-693

APPLICANT:

Ms J Bennison

RESPONDENT:

Mr P Bennison

FILE NUMBER:

BRC

338

2011

DATE DELIVERED:

25 January 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

8 and 23 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Wilson SC

SOLICITOR FOR THE APPLICANT:

Murdoch Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Hackett

SOLICITOR FOR THE RESPONDENT:

Hirst & Co

Orders

That within forty-five (45) days of the date of these Orders the Husband cause to be paid to the trust account of the solicitors for the Wife the sum equal to the total of the amounts of legal costs and outlays paid to the Husband’s solicitor on his account for legal costs and outlays in respect of these proceedings since 23 May 2012;
On and from the date of these Orders the Husband shall cause to be paid to the trust account of the solicitors for the Wife the same amount or amounts, on a dollar for dollar basis, that is paid to the Husband’s solicitors from time to time on his account in respect of legal costs and outlays of these proceedings.
The obligation of the Husband under Orders (1) and (2) of these Orders shall cease upon the total of the amounts paid reaching $116,000.00.
The Wife be entitled to access any such funds paid to the trust account of her solicitors pursuant to these Orders solely for the purpose of meeting her legal costs and outlays of these proceedings and not otherwise.
No later than three (3) days prior to the commencement of the final trial of these proceedings the Wife shall file and serve an affidavit detailing the amounts, use and expenditure of the funds paid to her solicitors’ trust account pursuant to these Orders.
The amounts paid to the trust account of the solicitors for the Wife pursuant to these Orders shall be taken into account in the final trial of these proceedings.
Each party’s costs of and incidental to this application be reserved to trial.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bennison & Bennison (formerly Bronson & Bronson) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 338 of 2011

Ms J Bennison

Applicant

And

Mr P Bennison

Respondent

REASONS FOR JUDGMENT

At the outset I record my sincere apology to the…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2013] FamCA 11
Decision Date

CaseChat Overview and Summary

The Family Court of Australia heard an application by the Wife, Ms J Bennison, for interim provision for her litigation expenses in substantive property settlement proceedings against the Husband, Mr P Bennison. The Wife sought $116,000 to fund her legal costs, alternatively a "dollar for dollar" order, either as an order for costs under section 117(2) of the *Family Law Act 1975* (Cth) or as an interim property order under sections 79 and 80(1)(h) of the Act. The Husband opposed the application, arguing he was not in a position of relative financial strength, lacked the capacity to fund both parties' costs, and that the Wife had sufficient assets and had not established an arguable case for final relief.

The court was required to determine whether there were justifying circumstances under section 117(2) of the *Family Law Act* to make an order for interim litigation expenses, and if so, what form that order should take. Specifically, the court had to consider the relative financial positions of the parties, the Husband's capacity to meet costs, the Wife's inability to fund her own litigation, and whether the Wife had an arguable case for substantive relief. The court also considered whether such an order could be made as an interim property settlement.

Justice Kent applied the principles established in *Penfold v Penfold* and *Zschokke & Zschokke*, noting that section 117(2) requires a finding of justifying circumstances, which need not be extraordinary. The court identified three key factors for an order under section 117(2) for interim litigation expenses: the respondent's relative financial strength, the respondent's capacity to meet their own costs, and the applicant's inability to meet their own costs. The court also considered the complexity of the financial affairs and the need for expert investigation as factors that could add weight to the application. The court found that the Wife had an arguable case for substantive relief and that the Husband was in a position of relative financial strength.

The court ordered that the Husband pay to the Wife's solicitors' trust account the sum equal to the total of legal costs and outlays paid by the Husband to his solicitors since 23 May 2012, and on a dollar-for-dollar basis thereafter, until the total amount paid reached $116,000. The Wife was entitled to access these funds solely for legal costs and outlays. The amounts paid were to be taken into account in the final trial, and each party's costs of the application were reserved to trial.

Orders