Bennison and Bennison (Formerly Bronson and Bronson)

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.