Millman & Millman

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.