FAMILY COURT OF AUSTRALIA
Millman & Millman [2021] FamCA 556
File number(s): ADC 30 of 2020 Judgment of: BERMAN J Date of judgment: 2 August 2021 Catchwords: FAMILY LAW – PROPERTY – Interim distribution – Where the wife seeks a lump sum payment on account of litigation funding – Where the husband seeks that the application be dismissed – Where an order for litigation funding has previously been made – Where the matter has been listed for final hearing – Where the wife has an arguable case – Where the wife has been unable to pay legal fees as and when they have been incurred – Where the husband has been able to pay his legal fees – Where the amount sought is not irreversible – Orders. Legislation: Family Law Act 1975 (Cth) ss 79, 80(1), 117(2) Cases cited: Bede Polding College v Limit (No. 3) Limited & Anor [2008] NSWSC 887
Dempster v National Companies and Securities Commission (1993) 9 WAR 215
General Steel Industries Inc. v Commissioner for Railways(NSW) (1964) 112 CLR 125
Jackamarra v Krakouer & Anor (1998) 195 CLR 516
Medlow & Medlow (2016) FLC 93-692
Rakete v Rakete (2012) 48 Fam LR 325
Salvage & Fosse (2020) FLC 93-966
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466
Number of paragraphs: 81 Date of hearing: 30 June 2021 Place: Adelaide Counsel for the Applicant: Ms Lewis Solicitor for the Applicant: Jacqui Ion Lawyers Pty Ltd Counsel for the Respondent: Ms Nelson QC Solicitor for the Respondent: Angela Ferdinandy Counsel for the Second Respondent: Mr Bullock Solicitor for the Second Respondent: Douglas Hoskins Legal ORDERS
ADC 30 of 2020 BETWEEN: MS MILLMAN
Applicant
AND: MR MILLMAN
Respondent
AND: MR FAZIL
Second Respondent
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
2 AUGUST 2021
UPON NOTING that all applications for final orders are listed for hearing on 1 November 2021
THE COURT ORDERS:
1.That the respondent husband do pay or cause to be paid to the trust account of the applicant wife’s solicitors the sum of $77,000 by way of interim property settlement within 30 days of the date of this order.
2.That by 4.00 pm on 3 September 2021 the applicant file and serve upon all other parties:-
(a)an amended application setting out with precision the orders to be sought;
(b)the affidavits of evidence in chief of all witnesses including the applicant relied upon (noting the affidavits relied upon for previous hearings cannot be relied upon as evidence in chief); and
(c)a financial statement that complies with chapter 13 of the Family Law Rules.
3.That the applicant and the respondent do each pay one half of all setting down and trial fees by 4.00 pm on 22 October 2021.
4.That by 4.00 pm on 13 October 2021 the first and second respondents do each file and serve upon all other parties:-
(a)an amended response setting out with precision what orders are being sought;
(b)the affidavits of evidence in chief of all witnesses including the respondents…
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CaseChat Overview and Summary
The court was required to determine whether to grant the wife's application for interim litigation funding, considering a previous order for litigation funding had been made. Key issues included the wife's ability to pay her legal fees, the husband's capacity to fund the litigation, and the reasonableness of the amount sought for counsel fees.
Berman J reasoned that the wife had an arguable case and had been unable to pay her legal fees as they were incurred, whereas the husband had been able to meet his. The court found that the amount sought for anticipated counsel fees was reasonable and not irreversible. The judge noted the significant mistrust between the parties and the husband's control over valuable property contributed to the situation. Consequently, the court ordered the husband to pay $77,000 to the wife's solicitors' trust account within 30 days as an interim property settlement to enable the wife to secure senior counsel. The court also made detailed procedural orders to ensure readiness for the final hearing.
Orders
Orders of the court
ADC 30 of 2020
BETWEEN:
MS MILLMAN
Applicant
AND:
MR MILLMAN
Respondent
AND:
MR FAZIL
Second Respondent
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
2 AUGUST 2021
UPON NOTING that all applications for final orders are listed for hearing on 1 November 2021
THE COURT ORDERS:
1. That the respondent husband do pay or cause to be paid to the trust account of the applicant wife’s solicitors the sum of $77,000 by way of interim property settlement within 30 days of the date of this order.
2. That by 4.00 pm on 3 September 2021 the applicant file and serve upon all other parties:-
(a) an amended application setting out with precision the orders to be sought;
(b) the affidavits of evidence in chief of all witnesses including the applicant relied upon (noting the affidavits relied upon for previous hearings cannot be relied upon as evidence in chief); and
(c) a financial statement that complies with chapter 13 of the Family Law Rules.
3. That the applicant and the respondent do each pay one half of all setting down and trial fees by 4.00 pm on 22 October 2021.
4. That by 4.00 pm on 13 October 2021 the first and second respondents do each file and serve upon all other parties:-
(a) an amended response setting out with precision what orders are being sought;
(b) the affidavits of evidence in chief of all witnesses including the respondents relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief);
(c) a financial statement that complies with chapter 13 of the Family Law Rules.
5. That by 4.00 pm on 27 October 2021 the applicant file and serve any affidavit in reply to that of the affidavits of the respondents.
6. That no party file any further material other than as provided by these orders without leave of the Court.
7. That prior to the commencement of the trial, the parties determine whether there are to be any rulings required arising out of objections to evidence and such objections be referred to in the parties’ outline of case.
8. That all parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.
9. Liberty is granted to each party to relist the matter at short notice in relation to trial directions or any application for leave for subpoena to issue.
10. That the practitioners for the parties file and serve electronically to … by 4.00 pm on 29 October 2021 the following:
(a) a concise set of orders to be sought if different from those already filed;
(b) a list of the applications and affidavits to be read out and if not the whole affidavit, the relevant paragraphs relied upon;
(c) a list of assets and liabilities;
(d) a list of objections to evidence upon which rulings are required; and
(e) a bullet-point summary of argument in relation to the issues in dispute.
11. That each party provide to the Court at the commencement of the hearing, a statement setting out the costs incurred to that date and from what source those funds have been paid and what costs are expected to be incurred until the completion of the hearing.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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