Millman & Millman - [2020] FamCA 1042

FAMILY COURT OF AUSTRALIA

MILLMAN & MILLMAN AND ANOR

[2020] FamCA 1042

FAMILY LAW – COSTS – Circumstances justifying an order – Where the wife seeks a lump sum payment by way of litigation funding or in the alternative a dollar for dollar order – Consideration of the financial circumstances of the parties – Where the husband has been able to pay his legal fees – Where despite his stated impecuniosity the husband has agreed to meet the mortgage liabilities, pay spousal maintenance to the wife and meet the children’s school fees – Where there is no explanation to the change in the financial circumstances of the husband which explain his ability to meet his obligations under the parties’ agreement – Where the wife is not in receipt of any income – Where there is a prima facie case that the wife has an entitlement under s 79 of the Family Law Act 1975 (Cth) – Where there is currently no level playing field as between the parties - Orders.

Family Law Act 1975 (Cth) ss 79, 80(1)(h), 117, 117(2)

G and T (2004) FLC 93-176
Klearchos & Klearchos and Ors [2015] FamCAFC 217
McLean & McLean [2003] FamCA 330
Strahan & Strahan (Interim Property Orders ) (2011) FLC 93-466

APPLICANT:

Ms Millman

1st RESPONDENT:

Mr Millman

2nd RESPONDENT:

Mr Fazil

FILE NUMBER:

ADC

2020

DATE DELIVERED:

8 December 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

29 October 2019 and 4 November 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Lewis

SOLICITOR FOR THE APPLICANT:

Jacqui Ion Lawyers Pty Ltd

COUNSEL FOR THE 1ST RESPONDENT:

Ms Nelson QC with Mr Richards

SOLICITOR FOR THE 1ST RESPONDENT:

Angela Ferdinandy

COUNSEL FOR THE 2ND RESPONDENT:

Mr Bullock

SOLICITOR FOR THE 2ND RESPONDENT:

Douglas Hoskins Legal

Upon noting that:

All school fees are paid up to the end of 2020.

The first respondent husband will do all things necessary to withdraw the Appeal filed 29 July 2020 (on the basis that there be no order as to costs) on the next business day following the date of these orders.
The first respondent husband is satisfied that he is able to meet the interim spousal maintenance payments as provided for in these orders pending final hearing.

It is Ordered

That the husband do pay or cause to be paid to the trust account of the wife’s solicitor the sum of FIFTY THOUSAND DOLLARS ($50,000) by way of litigation funding payable within thirty (30) days of the date of this order.
That if the lump sum payment is not paid THEN within seven (7) days after the payment by or on behalf of the husband of any money in payment of accounts rendered by his solicitors including in relation to expenses associated with the preparation of his case, the husband pay or cause to be paid the same amount of money to the solicitors for the wife.
That within twenty four (24) hours after the payment by…

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

AGLC: Millman & Millman [2020] FamCA 1042
Case: [2020] FamCA 1042
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Ms Millman (the wife) and Mr Millman (the husband) were in dispute concerning property settlement and parenting arrangements for their two children. The proceedings were initially commenced in the Federal Circuit Court of Australia and subsequently transferred to the Family Court. Mr Fazil was joined as a party to the proceedings by a later order. Various interim applications were heard, with the parties ultimately reaching substantial agreement on outstanding interim matters, including urgent spousal maintenance, which was reflected in a draft minute of order.

The court was required to determine the wife's application for litigation funding or, in the alternative, a dollar-for-dollar order for costs. This involved considering the financial circumstances of both parties, particularly the husband's demonstrated ability to meet significant financial obligations despite claims of impecuniosity, such as agreeing to mortgage liabilities, pay spousal maintenance, and cover school fees. The court also had to assess the wife's financial position, noting her lack of income and the prima facie case for her entitlement under section 79 of the *Family Law Act 1975* (Cth), to address the imbalance in the parties' financial capacity to litigate.

The court reasoned that the husband's capacity to meet his obligations, despite his stated financial difficulties, indicated an ability to contribute to the wife's legal costs. The court noted the absence of an explanation for any change in his financial circumstances that would account for this ability. Applying principles related to costs and litigation funding, the court aimed to create a more level playing field between the parties, acknowledging the wife's lack of income and her potential entitlement to property settlement.

The court ordered the husband to pay $50,000 to the wife's solicitors as litigation funding within thirty days. Further provisions were made to ensure that if this lump sum was not paid, the husband would be required to pay to the wife's solicitors an amount equivalent to any money paid by him to his own solicitors for his legal expenses, within seven days of such payment. Additional orders detailed the process for notification and the holding of these funds in trust, with a provision for the husband's solicitors to pay 50% of funds held in trust to the wife's solicitors if the primary payment was not made. The court also made extensive interim orders regarding parenting arrangements, spousal maintenance, and the husband's sole use and occupation of a property, with specific conditions and default provisions. The question of costs was reserved.

Orders