Davers & Morley [2025] FedCFamC2F 1265 (15 September 2025)

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These Reasons address the competing applications filed by the parties for interim financial relief.
2. Mr Davers ('the husband') is the applicant in the substantive proceedings. For the purposes of this interim application, Ms Morley ('the wife') is in fact the applicant. Accordingly, I propose to refer in these reasons to the wife as the 'applicant wife' and the husband as the 'respondent husband' where appropriate.
3. To their credit, at hearing on 14 August 2025, the parties were able to reach agreement in relation to several outstanding orders sought. The substantive issues concerning payment of spousal maintenance and litigation funding proceeded to argument.
4. For the reasons set out herein, I propose to make orders for periodic spousal maintenance and to make an order for "dollar-for-dollar" litigation funding in favour of the applicant wife and to dismiss the current interim applications.

1. The applicant wife was born in 1968 and is now aged 57 years.
2. The respondent husband was born in 1967 and is now aged 58 years.
3. The parties commenced a relationship in 1992 before cohabitating in 1993.
4. The parties were married in 1996 in Country B.
5. The parties have two children, X and Y, twin boys born in 2003 ('X and Y'). X and Y are young adults who continue to receive generous support from each of their parents whilst they pursue tertiary education.
6. The parties have at various times lived and worked overseas during their relationship. It is evident from reading their affidavit material that they have both worked hard to ensure their financial future, and to support their family during their relationship.
7. The applicant wife now describes her occupation as Company Director, and the respondent husband describes his occupation as a Director at C Company.
8. There is a factual dispute between the parties as to the actual date of separation. For the purposes of these reasons, I do not consider that anything turns on the slight difference ascribed by the parties as to the date when their relationship concluded. The parties agree that upon separation, the respondent husband moved from the parties' joint home and moved into a unit owned by the parties at 1 D Street, Suburb E in the State of South Australia.
9. Both parties are well-educated. The applicant wife has post-graduate qualifications from R University. She later completed further studies in business and allied health care. The respondent husband graduated from R University with a business degree and later completed a master's degree in business administration.
10. In or about 2000, the parties purchased their first investment property at Suburb F in the State of South Australia and an apartment which they occupied in Suburb G. Since that time, the parties have purchased various properties with a goal of establishing themselves financially for their retirement. Their hard work and endeavours are reflected in the assets now available for distribution as set out in Annexure "MSM 2" to the affidavit of the applicant wife filed on 13 August 2025.
11. There does not appear to be any factual dispute that the applicant wife has not worked in a full-time paid capacity since 2017, nor has she retained her registration as an allied health professional .
12. It is the applicant wife's case that she is unable to work in any full-time salaried position due to her health conditions, and that she requires financial support from the respondent husband pending final resolution of their property applications.
13. The respondent husband opposes the applicant wife's application for spousal maintenance. It is the respondent husband's case that the applicant wife has overstated her health problems and would be able to obtain some form of employment should she choose to do so. He also contends that the applicant wife receives income from various sources other than paid employment which is sufficient to support her in the intervening period before the parties' final applications can be determined by the Court at Trial.
14. As to the applicant wife's claim for litigation funding, the respondent husband argues that the applicant wife is well resourced and able to meet her legal fees as and when they fall due because of the savings standing to her credit in her bank accounts. Further, the respondent husband contends that there is nothing before the Court to suggest that the applicant wife will lose legal representation in the short or indeed the longer term. He argues that there is nothing pleaded to suggest that the applicant wife's solicitors will cease to represent her if a litigation funding order is not made.
15. Despite the Court's encouragement for the parties to try to resolve these issues, they were unable to do so. Accordingly, it falls to the Court to make orders and to determine the dispute at this interlocutory stage.

1. The applicant wife's interim orders sought in her Response to Final Orders filed on 7 April 2025, set out the interim financial relief sought by her. As referred to herein, the parties have been able to resolve matters pertaining to the wife's retention of Motor Vehicle 1 and her sole occupation of the property at H Street, Town J.
2. The applicant wife's interim orders sought were refined at hearing, such that the amounts of spousal maintenance sought by her were reduced and with the order for a lump sum payment for litigation expenses no longer being sought. Rather, the applicant wife pressed solely an order for "dollar-for-dollar" litigation funding.
3. The orders sought by the applicant wife at hearing can be summarised as follows:

(1) That the respondent husband pays periodic maintenance to the applicant wife in the sum of $1,300 per week commencing seven (7) days after the date of this order;

(2) That maintenance payable under this order shall be paid by way of fortnightly payments in the sum of $2,600 deposited by electronic funds transfer into the applicant wife's nominated bank account;

(3) That pursuant to section 114UB of the Family Law Act 1975 (Cth), the respondent husband pay to the applicant wife a "dollar-for-dollar" order whereby every dollar that the respondent husband pays his legal representatives, he pays the same amount to the trust account of the applicant wife's legal representatives; and

(4) That the respondent husband pays by way of electronic funds transfer to the trust account of the applicant wife's solicitors, an amount equal to the legal costs incurred by the respondent husband in respect of the matter including those costs, whether paid or unpaid, incurred prior to the commencement of proceedings, and up to, and including the date of this order.

1. The respondent husband sought by way of interim order that the applicant wife make his computer and accessories available for collection, which remained in the applicant wife's possession upon separation. At hearing, the parties were able to resolve this issue by consent and orders have been made in those terms.

1. The applicant wife filed an Outline of Case Document (Interim Hearing) on 13 August 2025 which outlines that she relied upon the following documents:

(1) Affidavit of Ms Morley filed 7 April 2025;

(2) Affidavit of Ms Morley filed 13 August 2025; and

(3) (Amended) Financial Statement of Ms Morley filed 13 August 2025.

1. In addition, the wife tendered and relied upon Exhibits W1 and W2 respectively.
2. The respondent husband filed an Outline of Case Document (Interim Hearing) on 13 August 2025 which outlines that he relied upon the following documents:

(1) (Amended) Initiating Application filed 1 August 2025;

(2) Affidavit of Mr Davers filed 1 August 2025; and

(3) Financial Statement filed 1 August 2025.

1. In addition, the husband tendered and relied upon Exhibits H1 and H2 respectively.

1. The issues arising from the parties' respective orders sought that require determination are:

(1) Whether an order should be made granting the applicant wife periodic spousal maintenance, and if so, in what amount;

(2) Whether or not the order for spousal maintenance should be backdated to the date of filing of the application or in the alternative, the date when the applicant wife alleges that financial support was withdrawn by the respondent husband;

(3) Whether or not the Court should make an order for "dollar-for-dollar" litigation funding in favour of the applicant wife; and

(4) If a litigation funding order is made, whether such order should be backdated.

1. The applicant wife seeks an order that the husband pay her the sum of $1,300 per week by way of periodic spousal maintenance.[1]
2. The wife's application for spousal maintenance is brought pursuant to section 72 of the Family Law Act 1975 (Cth) ('the Act') which provides that:

(1) A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:

(a) by reason of having the care of a child of the marriage who has not attained the age of 18 years; or

(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or

(c) for any other adequate reason;

having regard to any relevant matter referred to in subsection 75(2).

(Emphasis in original)

1. Section 74 of the Act provides that in proceedings with respect to the maintenance of a party to a marriage, the Court may make such order as it considers proper for the provision of maintenance in accordance with this part.[2]
2. In considering matters pertaining to spousal maintenance in exercising jurisdiction under section 74 of the Act, the Court is required to consider only the matters referred to in section 75(2) of the Act.[3]
3. Section 75(2) of the Act sets out a list of criteria that the Court is to consider when determining an application for interim spousal maintenance, such criteria is as follows:

Matters to be taken into consideration in relation to spousal maintenance

...

(2) The matters to be so taken into account are:

(aa) the effect of family violence to which one party has subjected or exposed the other party, including on any of the matters mentioned elsewhere in this subsection; and

(a) the age and state of health of each of the parties; and

(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and

(c) the extent to which either party has the care of a child of the marriage who has not attained the age of 18 years, including the need of either party to provide appropriate housing for such a child; and

(d) commitment of each of the parties that are necessary to enable the party to support:

(i) himself or herself; and

(ii) a child or another person that the party has a duty to maintain.

(e) the responsibilities of either party to support any other person; and

(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:

(i) any law of the Commonwealth, of a State or Territory or of another country; or

(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operated, within or outside Australia; and the rate of any such pension, allowance or benefit being paid to either party; and

(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and

(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and

(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and

(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and

(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and

(l) the need to protect a party who wishes to continue that party's role as a parent; and

(m) if either party is cohabiting with another person - the financial circumstances relating to the cohabitation; and

(n) the terms of any order made or proposed to be made under section 79 in relation to:

(i) the property of the parties; or

(ii) vested bankruptcy property in relation to a bankrupt party; and

(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:

(i) a party to the marriage; or

(ii) a person who is a party to a de facto relationship with a party to the marriage; or

(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or

(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and

(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and

(p) the terms of any financial agreement that is binding on the parties to the marriage; and

(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage; and

(r) any other fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.

1. Justice Schonell in Parsons & Parsons [2023] FedCFamC1F 382, at [32]-[38] sets out the following summary of the principles to be applied in applications of this kind.[4]
   1. The Full Court in Bevan & Bevan (1995) 92-600 identified the requisite elements necessary to the making of a spousal maintenance order. The applicant for relief bears the onus of establishing that they are unable to support themselves adequately by reason of the matters set out in s 72 of the Family Law Act 1975 (Cth) ("the Act"), including having regard to any relevant matter referred to in s 75(2).
   2. There is no liability to pay spousal maintenance unless the need of the applicant is first established. If the applicant cannot establish an inability (which will not be inferred) to support themselves, then an order for maintenance cannot and will not be made (see Rowan and Rowan [1977] FamCA 100; (1977) FLC 90-310 and Stacy and Stacy (1977) FLC 90-324).
   3. Determination of the question of whether an applicant for spousal maintenance can support themselves adequately is not to be determined by reference to any fixed or absolute standard but by reference to the matters referred to in s 75(2) of the Act (see Mitchell and Mitchell [1995] FamCA 32; (1995) FLC 92-601 at 81,995). In Atwill and Atwill [1981] FamCA 72; (1981) FLC 91-107, Nygh J at 76,792 held:

"Adequately" imports relativity. Subsistence may be adequate for some applicants but not for others. It must be viewed in the light of para. (g) of sec. 75(2) "a standard of living that is in all the circumstances reasonable" ...

1. While in Wilson and Wilson [1989] FamCA 34; (1989) FLC 92-033, their Honours held at 77,453:

... A standard of living that in all the circumstances is reasonable for the party claiming maintenance is not necessarily the same standard as that enjoyed by the party who is ordered to pay maintenance. ... Similarly, the standard of living that in all the circumstances is reasonable for the wife in this case, is not necessarily the same standard as that enjoyed during cohabitation. ...

1. In Redman and Redman [1987] FamCA 2; (1987) FLC 91-805, the Full Court observed at 76,081:

... Another consequence is that on an application for interim maintenance the court conducts "not as final or exhaustive a hearing as would be the case if one were hearing the matter finally": Williamson and Williamson [1978] FamCA 57; (1978) FLC 190-505; (1978) 4 Fam. L.R. 355 at FLC p.77,650; Fam. L.R. p. 359 per Fogarty J. The evidence need not be so extensive and the findings not so precise. Having regard to those factors, and the general injunction of sec. 97(3), the court should in such matters have a greater degree of flexibility than it possesses in applications for maintenance which are intended 10 last for an indefinite period and can only be varied under sec. 83.

1. The onus is on the applicant wife to demonstrate an inability to support herself adequately. If she can satisfy the Court on this threshold issue, the capacity of the respondent husband to meet a spousal maintenance order must then be considered.
2. The question of whether a party seeking spousal maintenance can support themselves adequately is not to be determined by reference to any fixed or absolute standard.[5] Further, the hearing of an application for interim maintenance is not to be conducted as a final or exhaustive hearing. The evidence need not be so extensive and the findings not so precise.[6]
3. In this case, the argument proceeded on the papers. The Court is unable to make any findings where there are factual issues in dispute between the parties bearing upon the issues to be determined by the Court.

CONSIDERATION OF THE WIFE'S APPLICATION FOR SPOUSAL MAINTENANCE

1. The applicant wife seeks an order for periodic spousal maintenance. It is her case that she cannot to support herself adequately by reason of her limited capacity for employment arising principally from her health conditions.
2. On the papers, there is no apparent dispute that the applicant wife has not engaged in full-time employment since 2017.
3. Whilst the applicant wife is well-educated and has worked at a high level during the marriage, she sets out in her affidavit filed on 7 April 2025, under the heading "My Health", a list of various health problems (both historically and present) which are summarised below:

(a) In 2008, the applicant wife became severely ill and was diagnosed with a medical condition. She alleges that at best she functions at 85% of her pre-illness capacity and continues to experience residual weakness and pain.[7]

(b) In 2009, the applicant wife was diagnosed with a pain condition caused by a serotonin reaction to a Selective Serotonin Reuptake Inhibitor (SSRI) prescribed for pain management. She alleges that she was hospitalised for two weeks for this condition and continues to suffer from ongoing pain flare-ups.[8]

(c) The matters referred to in paragraphs 88 and 89 of the applicant wife's affidavit filed 7 April 2025 are not disputed by the respondent husband in his responding affidavit filed 1 August 2025.

(d) The applicant wife deposes to being unable to drive a motor vehicle, or live independently during the period of 2019 to 2021, and that she retains a limited capacity to walk, stand steadily and has ongoing balance issues.[9] The respondent husband agrees with this.[10]

(e) In 2024, the applicant wife was diagnosed with a heart condition and has been referred for tests at a hospital.[11]

(f) The applicant wife complains that she continues to suffer from several ailments.[12] She estimates that her capacity to work is a maximum of 10 to 12 hours per week, provided that the work is paced at a rate she can cope with, and spread out over six days.

(g) The applicant wife is receiving various forms of treatment ranging from osteopathy, hydrotherapy, vitamin B12 injections, homoeopathy and counselling for pain management, together with medication and rest.

1. There are no reports from treating physicians confirming the applicant wife's multitude of health problems. Through her counsel at hearing, the applicant wife submits that the medical reports have not been obtained because it was her understanding that her medical conditions were not challenged by the respondent husband. The applicant wife refers to paragraphs 62, 64, 68 and 69 of the respondent husband's affidavit filed 1 August 2025, wherein he accepts the wife's historical assertions regarding her health.
2. Counsel for the applicant wife submits that if the Court requires further medical evidence, it could make an order for urgent spousal maintenance pursuant to section 77 of the Act, pending production of the reports, which are said to be many.[13]
3. The essence of any application for spousal maintenance made pursuant to section 77 of the Act is that it is made under circumstances of emergency or extreme financial hardship. Spousal maintenance orders made pursuant to section 77 of the Act are often ad hoc in nature and are sometimes referred to as "stop-gap" orders.[14] Orders are made pending a more detailed examination of the prevailing circumstances and often without much evidence.
4. I do not consider that it is appropriate to deal with this matter pursuant to section 77 of the Act. Both parties have filed affidavits and in the case of the wife, two financial statements and two detailed affidavits. I consider that it is appropriate to deal with the applications as the parties have presented their respective cases before the Court. Further, I do not see utility in adjourning the applications for a further interim hearing which will incur further legal fees for the parties and keep them focused on interim issues rather than resolving the dispute on a final basis.
5. The respondent husband submits that the applicant wife is overstating her health conditions and would have capacity to engage in some form of employment. He is critical of the applicant wife for not obtaining any independent evidence of her current medical conditions. It was conceded by the respondent husband's counsel that he was aware of the applicant wife suffering from various medical complaints prior to the parties' separation in 2024. Counsel for the respondent husband submitted that the applicant wife should not have assumed that he still agreed with her medical complaints, given that he is not able to assess her medical functioning now.
6. It was conceded that the applicant wife's standard of living should not be at a subsistence level.
7. It is the respondent husband's position that the applicant wife has an unexercised earning capacity. Further, there is no evidence that the applicant wife cannot work full-time, and no evidence that she is unable to work to the capacity that she asserts. The respondent husband argues that the applicant wife is seeking credit for a range of contributions made by her in the period post 2017 such as homemaker duties, caring for the children, renovations and running the parties' investment portfolios. To his mind, the wife is attempting 'have a bet each way' in arguing that she made contributions at a time when she was unwell but is now arguing that she is so unwell that he must be responsible for her financial support.
8. In this case, the agreed position of the parties is that the applicant wife has not worked in any paid capacity since 2017, and that she has experienced health difficulties in the past which have impacted on her ability to engage in employment.
9. The Court cannot resolve the dispute between the parties about whether or not it was reasonable of the applicant wife to assume that her medical conditions were accepted by the respondent husband in explaining the absence of any medical reports corroborating her medical conditions.
10. As I have been at pains to point out, the evidence at interim hearings such as this, may not be exhaustive or as precise as what may be required at a final hearing.
11. On balance and in weighing up the available evidence at this interim hearing, I am satisfied that the applicant wife is unable to support herself adequately in accordance with the provisions of the Act. Further, whilst the applicant wife has access to capital, she is in her fifties and faces an uncertain financial future. In my view, it would not be proper to expect the applicant wife to draw down on these amounts for her recurrent financial support.
12. I consider that the applicant wife has discharged the onus in satisfying the Court that she is unable to support herself adequately without financial support.

What are the applicant wife's reasonable weekly needs?

1. The Court must now consider the applicant wife's reasonable weekly needs.
2. In her (Amended) Financial Statement filed 13 August 2025 ('her financial statement'), the applicant wife deposes that her total income is $489 gross per week as follows:
   • $326 from interest; and
   • $163 from K Proprietary Limited.
3. In Part N of her Financial Statement relating to expenses, the total amounts required for her support are said to be the sum of $2,055 and with her total personal expenditure said to be $2,516 per week as set out in Part B.
4. In her affidavit filed 7 April 2025, the applicant wife sets out her reportable taxable income for the past three financial years, said to comprise a combination of franked dividends, franking credits, bank interest and net rent being;

(a) Financial Year ending 2022 - $2,296;

(b) Financial Year ending 2023 - $20,414; and

(c) Financial Year ending 2024 - $21,858.[15]

1. The applicant wife is ineligible for government benefits and has no Total and Permanent Disability insurance. She continues to reside at the Town J property alone, save for the occasions when her son X resides with her for three to four days per week.
2. It is the applicant wife's case that her financial need is overwhelming, and that an order should be made as sought by her at hearing.
3. At hearing, the respondent husband was highly critical of the income asserted by the applicant wife in Part D of her financial statement. It is his position that the applicant wife has grossly understated her income, given that she receives gross rent from the following properties which she retains for her sole use and benefit alone:

(1) $520 per week (which will soon be paid to her) from the L Street property;

(2) $400 per week from the N Street, Town M property;

(3) $250 per week from the property at 1 D Street, Suburb E; and

(4) $320 per week from the property at 2 D Street, Suburb E.

1. The wife's gross income from the rental properties amounts to $1,490 per week.
2. Careful and detailed submissions were made by counsel for the respondent husband addressing various items said to be inflated by the applicant wife in Part G of her financial statement. Further, a submission was made that the applicant wife's voluntary payment towards her superannuation in the sum of $211 per week, as identified at paragraph 20 of her financial statement, could not be seen as a necessary expense for her financial support.
3. The respondent husband submits that the applicant wife's personal expenditure, in paragraph 32 of her financial statement, should be approximately $1,549.40 and not $2,055 as stated therein. It is the respondent husband's case that the applicant wife's weekly income is $1,816 in total, leaving an amount of $267 in reserve which she could use for financial support. The respondent husband submits that the applicant wife has sufficient funds available from her own reserves to support herself financially in the interim period.
4. The respondent husband contends that the applicant wife has established a business called "O Business" for allied health care. There was no evidence before the Court as to what the applicant wife had done with this business.
5. Reference was made by counsel for the respondent husband to entries in the applicant wife's personal National Australia Bank ('NAB') account, account number ending ...84, for various amounts of $360 paid, for example, by a person called "Ms P", on 11 April 2025 and on 15 May 2025. The respondent husband complains that these sources of income are unexplained and should be considered by the Court as a further example of the applicant wife having alternate sources of income that she has failed to disclose.
6. Submissions were made by counsel for the respondent husband in great detail addressing the applicant wife's financial statement, and particularly the income asserted under Part D of her amended financial statement. Further submissions were made as to the entries in relation to paragraphs 20, 22, 24, 26 respectively of her financial statement, and also the matters pleaded in Part N as to her weekly expenses. For example;

(a) house repairs at $400 per week should be $100 per week;

(b) gas and electricity expenses should be halved per week;

(c) medical expenses should be reduced to $100 per week from $250;

(d) gardening and lawn mowing is $30 per week and not $80 per week;[16] and

(e) other necessary commitments should be $100 per week and not $250 per week.

1. There are a multitude of disputes between the parties as to the applicant wife's actual income and her reasonable expenses. Doing the best that I can on the information available, I am satisfied that the applicant wife has expenses totalling $650 per week which are currently not able to be met by her own resources.

What is the respondent husband's capacity to pay spousal maintenance?

1. The husband does not seriously argue against the proposition that he has a capacity to meet any order for payment of periodic spousal maintenance.
2. The respondent husband filed a financial statement on 1 August 2025 ('his financial statement'). His financial statement deposes to receiving gross pay from his employment in the sum of $10,184 per week. From this sum, he pays total income tax of $4,431 per week, plus pays superannuation in the sum of $64 per week.
3. In paragraph 23 of his financial statement, the respondent husband asserts a mortgage payment for his current accommodation at Q Street, Suburb R in the sum of $1,625 per week. The respondent husband deposes in paragraph 32 of his financial statement a total weekly expenditure of $3,372.
4. There were no submissions made by counsel on behalf of the applicant wife in relation to the respondent husband's Part N expenses set out in his financial statement. This is surprising given that the Court observes under the heading of "Other Necessary Commitments," the respondent husband is paying $1,000 per week towards his solicitors for ongoing legal fees.
5. The Costs Notice filed pursuant to Rule 12.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ('the Rules') by the respondent husband on 11 August 2025 confirms that he has paid legal fees and disbursements, a mediation fee and room hire fee totalling $36,597.
6. The wife complains that the husband has not disclosed the expenditure of his annual bonus from October 2024, which is said to be in the net amount of $89,000.
7. The applicant wife did not otherwise quibble with the costs set out in the respondent husband's financial statement.

Should there be an order for the payment of periodic spousal maintenance?

1. Counsel for the applicant wife submits that the Court should exercise its discretion to make an order for periodic spousal maintenance. The relationship of the parties is a long one, some 30 years in duration, and it is submitted there is an obligation on the respondent husband to support the applicant wife in circumstances where her prospects of employment are limited, and she has not worked in full-time employment since 2017.
2. Further, the applicant wife submits that pursuant to section 75(2)(aa) of the Act, the respondent husband's sudden withdrawal of financial support in June 2025 must be considered a form of family violence to which the respondent husband has subjected or exposed the wife.
3. Section 4AB of the Act under the heading of "Definition of Family Violence" defines family violence as:

any violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.

(Emphasis in original)

1. In subparagraph (2) of section 4AB of the Act, examples of behaviour that may constitute family violence include (but are not limited to) economic or financial abuse.[17]
2. Counsel for the applicant wife refers the Court to section 4AB(2A)(b) of the Act where the Court defines, that for the purposes of economic or financial abuse of a family member:

unreasonably withholding financial support needed to meet the reasonable living expenses of the family member

might constitute economic or financial abuse.

1. The respondent husband strongly resisted the categorisation of his withdrawal of financial support as meeting the definition of economic or financial abuse. He argues that there was no unreasonable withdrawal of support, given the significant financial resources available to the applicant wife at the time.
2. The applicant wife complains that up until 11 June 2025, the respondent husband had been depositing his salary of $10,785.49 per fortnight into the parties' joint NAB account, being account number ending ...92. Exhibit W2 confirms that the last payment by the respondent husband into the joint account occurred on 11 June 2025.
3. On 20 June 2025, the last remaining $900 was transferred from the joint NAB account into a personal account in the respondent husband's sole name. From that point forward, the applicant wife had no ready access to any funds from the joint account, nor access to a Visa credit card.
4. The discretion to make an order for interim spousal maintenance is a wide one. The Courts authority is to make an award of maintenance which it considers proper.
5. In assessing considerations of propriety, I must be careful not to assume that because the husband has a capacity to pay maintenance, that it is proper for spousal maintenance to be paid.
6. In this case, the respondent husband argues that the applicant wife has overstated her expenses and minimised her income to present a position before the Court in support of her claim. It is his position that the applicant wife has adequate resources for her financial support, and that she has not discharged the onus of establishing an actual and present need.
7. The respondent husband is critical of the applicant wife in filing an application for spousal maintenance in April 2025, at a time when financial support was ongoing, given the agreed position that the husband's financial support ended in June 2025, after his income was no longer paid into the parties' joint account. As such, he would categorise her claim as an unreasonable ambit claim particularly given the other benefits that the applicant wife has, such as a freehold home, motor vehicle, savings and rental income.
8. The concept of propriety is not specifically defined in the legislation. The Full Court has referred to "reasonableness in the circumstances" as the guiding principle for determining what is proper. This suggests a degree of objectivity. The applicant wife is not entitled to support simply because the respondent husband can afford to pay it.
9. In a case like this one where there are many areas of dispute between the parties, matters of fact which are agreed take on particular importance and, in my view, should be given substantial weight. The parties are agreed that the wife has not worked since 2017, and the husband has not disputed the wife's historical accounts of her ill health in leaving the work force.
10. In my view, the obvious disparity in income between the two households leads to a situation where it is reasonable for the respondent husband to provide some form of ongoing financial support to the applicant wife, notwithstanding the absence of any medical reports to support her contentions of ill health impacting on her capacity to work. Essentially, in my view, given their very different financial circumstances, it is proper that the respondent husband provide the applicant wife with recurrent financial support. For the reasons already outlined, these considerations are germane to the adequacy of maintenance.
11. To my mind, given the fact the respondent husband's income is so dramatically greater than the applicant wife's, it is both proper and reasonable for him to provide her financial support which I note will be for a limited time and can be subject to detailed review, if necessary, at the final hearing.
12. Having regard to the respondent husband's income and expenses, I am satisfied that he has capacity to pay to the applicant wife periodic spousal maintenance in the sum of $650 per week.
13. I do not propose to make any finding as urged by the applicant wife that the respondent husband's conduct in the withdrawal of financial support by diverting his income away from their joint bank account, constitutes family violence within the definition set out in section 4AB of the Act. Such a finding of family violence is not necessary to enable me to determine the issues in dispute between the parties at this interim stage.
14. The applicant wife seeks that any order for spousal maintenance be backdated to 20 June 2025 when the respondent husband's provision of financial support was withdrawn.[18] In my view, it would be neither proper nor reasonable for the award of maintenance to be backdated. I decline to exercise my discretion to do so.

WIFE'S CLAIM FOR DOLLAR-FOR-DOLLAR LITIGATION FUNDING

1. The applicant wife abandoned at hearing an application for lump-sum litigation funding in the sum of $75,000 but pressed an application for a "dollar-for-dollar" order. The respondent husband opposes the applicant wife's application for litigation funding.
2. The applicant wife submits that she should not be required to exhaust her financial resources to meet her legal fees. This is said to be particularly so in circumstances where the respondent husband earns a very high income.
3. Counsel for the applicant wife submits that there should be "a level playing field" between the parties. It is the applicant wife's position that in the future she will not have the capacity to save the same sorts of funds that the respondent husband will be able to, given the disparity of their income. Counsel for the applicant wife submits that the respondent husband has been able to meet his legal fees from income, whereas the applicant wife has not.
4. The respondent husband argues that there is no evidence before the Court that the applicant wife's legal representatives would withdraw from representing her in any future litigation. He submits that the applicant wife has ample property in which to pay her solicitor's fees, including savings, as identified in her financial statement. Counsel for the respondent husband submits that if the applicant wife was to pay her legal fees from her own resources, she would still have substantial assets. It was also submitted on behalf of the respondent husband that there would be no detriment to the applicant wife if she was required to draw down on savings to pay her legal expenses, given that she has more resources available to her than the respondent husband by way of cash savings.

CONSIDERATION OF THE WIFE'S APPLICATION FOR LITIGATION FUNDING

1. Section 114UB of the Act refers to the issue of costs. It is usual in proceedings subject to any further order of the Court for parties to bear their own costs. However, if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to several exceptions, make any order for costs, or security for costs, that the Court otherwise considers just. In considering what costs order, if any, should be made, the Court must have regard to several criteria. The presence of any one of those criteria may be sufficient to justify an order for costs.
2. Those criteria are set out in sub-paragraph (3) of section 114UB.

(3) In considering what costs order (if any) should be made, the court must have regard to the following:

(a) the financial circumstances of each party to the proceedings;

(b) whether any party to the proceedings is receiving assistance by way of legal aid in respect of the proceedings and, if so, the terms of the grant of the assistance to that party;

(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting paragraphs (a) and (b) the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters, and in relation to their duty of disclosure under subsection 71B(1), 90RI(1) or 90YJA(1);

(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;

(f) whether a party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer;

(g) such other matters as the court considers relevant.

1. Section 114UB (or its predecessor 117) of the Act confers the necessary power to make an order for litigation funding.[19]
2. The making of "dollar-for-dollar" orders has been the subject of judicial comment and review in several reported decisions. In the decision of Atkins & Hunt & Ors [2018] FamCA 14 ('Atkins') at [30]-[47], Watts J considered the making of dollar-for-dollar order as follows.
   1. In the event the court declined to exercise a discretion under s 117 of the Act, for a lump sum interlocutory costs order, the wife in the alternative seeks orders in a form commonly known as a "dollar for dollar" order.
   2. A dollar for dollar order provides a set of machinery provisions to ensure that for any dollar the financially advantaged party spends on legal costs and disbursements on the case, the disadvantaged party is also provided a dollar to spend on their case. The wife seeks this order on the basis that such an order would, to some extent, "level the playing field".
   3. In Selena & Montez and Ors [2017] FamCA 583 McClelland J expressed doubt regarding the court's power to make a litigation funding order under s 117 of the Act. After his Honour had discussed cases which made reference to costs orders being orders relating to costs which are "actually incurred" his Honour at paragraphs [94] and [95], made the following observations:

94. Finally, I would not have made an order for costs on a dollar for dollar basis as such costs would not be "certain and/or ascertainable" in accordance with the decision of the Full Court in Hogan & Hogan. In that case the Full Court held that the trial judge was in error in making an open ended order for the husband to pay the wife's costs. In so deciding the Full Court stated:

Whilst recognising that the court has unlimited discretion in relation to costs, in our view, the whole tenor of the legislative provisions and the history of costs orders whether interim or final requires them to be either certain and/or ascertainable and any order must be just.

95. In my view the time at which the costs must be certain and/or ascertainable is the time at which the order is made. To decide otherwise would prevent review of any such order requiring the costs to be paid. An order for the payment of costs on a dollar for dollar basis is necessarily not certain and can only be ascertained by the occurrence of subsequent events which, in this case, are the payment of legal costs by the husband.

[Footnotes omitted]

1. If his Honour's view is correct, no dollar for dollar order could ever be made. I respectfully disagree with his Honour's opinion. His Honour's reliance on Hogan & Hogan [1986] FamCA 34; (1986) FLC 91-704 does not have regard to the differences between the facts in that case and the facts that would normally lead to a discretion being exercised to make a dollar for dollar order. In Hogan the Full Court overturned the trial judge's order that the husband pay "the solicitor and own client costs and outlays of the wife's solicitors... (including counsel's fees) rendered by such from time to time to the wife". This was an order which gave the wife's lawyers an open cheque book, over which the husband had no control. It was argued unsuccessfully on appeal by the wife that the court would still retain some control when dealing with any application to enforce that order. Understandably the Full Court did not consider that an appropriate answer to the challenge to the order. A dollar for dollar order is fundamentally different. The financially advantaged party can choose and control what amount he or she spends on their own legal costs. It is not uncommon that, once a dollar for dollar order is made, the playing field is somewhat levelled by the financially advantaged party simply choosing to represent themselves so they don't have to fund their spouse's case against them.

2. In Vittorio & Oliphant [2017] FamCA 802 at [47] and [48] McClelland J refers to the views he expressed in Selena and goes on to emphasise the primary position set out in s 117(1) namely that "each party shall bear his or her own costs".

3. It is in my view, also important to recognise that the general rule in s 117(1) is prefaced by the words "Subject to subsection (2)". Justice Gill in Ryder & Bonham [2017] FamCA 979 made a dollar for dollar order and said:

97. Before allowing a departure from the general rule expressed in s 117(1) that each party bear their own costs, it is necessary to establish that there are, pursuant to s 117(2), circumstances that justify the departure. It is at that point that the discretion to make an order is enlivened. Until that point there is no power to make an order departing from the general rule.

98. Once enlivened, the discretion to make an order is governed by the requirement that the order, if made, be just, and that the determination as to whether any order should then be made, and the terms of that order, are governed by the considerations contained at s 117(2A).

1. Justice McClelland's view in Selena does acknowledge at paragraph [84] that the jurisprudence in this jurisdiction has allowed for "a litigation funding order" but without reference to cases which have made earlier statements in respect of dollar for dollar orders.

2. In Farnell and Farnell [1995] FamCA 140; (1996) FLC 92-681, Kay J said at 83,079:

In the Marriage of Gould, (Appeal EA 37 of 1994, judgment of 29 June 1994), the Full Court coram Fogarty, Kay and Graham JJ, overturned an order of the trial Judge wherein her Honour had ordered that pending trial, for every dollar that the husband had spent on his lawyers, he should provide the wife with a similar amount for costs. The trial Judge had ought [sic] to make that order to create what she saw as ''a level playing field''. The Full Court disallowed the orders on the basis that the wife had adequate finances to provide for her own costs by reason of a substantial recent inheritance. In the course of my reasons for judgment I said this:

"I wish to make comment on... the general philosophical views expressed by her Honour about endeavouring to achieve a level playing field by providing the wife with a dollar for dollar basis for costs. Whilst I agree with his Honour's [Fogarty J's] observations that this may not be an appropriate approach to these cases, I would also like to make reference to an article from the Chicago Daily Law Bulletin of 20 April 1992 which indicated that wives in these circumstances often have to spend much more than dollar for dollar to achieve a level playing field, particularly, and I quote - this is in reference to a survey of the American Bar Association Family Law Section:

'Most of the lawyers agree that women will face higher legal bills in a divorce. Accordingly to 91% of those surveyed women splitting from their husbands will have to pay more for discovery. Husbands traditionally have had full control over the family finances and economic information. This means the wife's attorney must often engage in discovery to gain equal knowledge about assets and income. The lawyer has an obligation to undertake discovery to find out if there are assets in just the husband's name, or if the wife has no knowledge of them.'"

1. In Iphostrou & Iphostrou and Ors [2011] FamCA 20, Cronin J quoted with approval, a reported decision of O'Reilly J in G and T [2003] FamCA 1076; (2004) FLC 93-176. In that decision, her Honour referred to her previous unreported decision of McLean & McLean (unreported 30 January 2003) in which Her Honour said:

110. Section 117(2) provides that if the Court is of opinion that there are circumstances that justify it in doing so the Court may subject to subsection (2A) and the applicable Rules of Court make such order as to costs including by way of interlocutory order as the Court considers just. In my view, that provision provides sufficient power to make the "dollar for dollar" order subject to consideration of the matters in subsection (2A). That provision requires the Court to have regard to the financial circumstances of each of the parties to the proceedings, and certain other matters which are not relevant in this case.

1. In Selena McClelland J quotes Murphy J in Esdale & Schenk [2012] FamCA 111 where Murphy J with respect correctly observes that certainly since the Full Court's decision in Strahan it is usual for a financially disadvantaged party to rely upon s 79 as the power to obtain a lump sum interim property settlement order for the purposes of funding litigation. Justice Murphy comments that s 117, whilst a possible relevant power, is little used because of the need to satisfy the requirements of the section before obtaining an order.

2. As indicated, dollar for dollar orders are most usually made relying upon s 117 of the Act. I agree with McClelland J that, if that is the power relied upon, in order to make a dollar for dollar order, a positive finding needs to be made under s 117(2) after the court has regard to s 117(2A) considerations.

3. Justice McClelland in Selena at [86] and [87] was concerned that, when dealing with a costs application at an interim stage, the court was not in a position to address all of the matters set out in s 117(2A). In particular in that case, he commented that he did not believe that he was "...at this stage of the proceedings, in a position to make a determination in respect to the competing contentions by the parties regarding the appropriateness or otherwise of their conduct in relation to the proceedings".

4. In Poletti & Poletti [1990] FamCA 79; (1990) 15 Fam LR 794, the Full Court was satisfied that an interlocutory costs order could be made under s 117 when the only provision of s 117(2A) discussed was s 117 (2A)(a) (the financial circumstances of each of the parties to the proceedings).

5. The Full Court in Fitzgerald v Fish and Anor [2005] FamCA 158; (2005) 33 Fam LR 123 at [41] said:

...Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.

1. In Ryder & Bonham Gill J made a dollar for dollar order notwithstanding he was unable to make any findings in respect to s 117(2A)(c)-(f) considerations. That is likely to be usually so, although in this case the husband raises an issue relating to the wife's conduct of the proceedings. Also it would be rare, if ever, that a party in a financial case would be in receipt of assistance by way of legal aid. That is so in this case.
2. When making a dollar for dollar order under s 117(2), the focus will usually be in considering the disparity of the financial resources available to the respective parties, including their ability or lack of ability to meet their litigation expenses (s 117(2A)(a)) and the unusual features of the matter (s 117(2A)(g) of the Act).
3. The making of a dollar for dollar order is a discretionary order that is usually made only as an order of last resort. Examples of circumstances which may attract the exercise of the discretion include:
   • 46.1. Where:
     • 46.1.1. The party who apparently controls significant financial purse strings pleads impecuniosity; and
     • 46.1.2. The financially disadvantaged party cannot point to any particular fund or asset that might be available to help assist that party fund their litigation; but
     • 46.1.3. The financially advantaged party seems to be able to fund their litigation through personal exertion income or structures that they directly or indirectly control (see for example, Zadenev & Zadenev [2014] FamCA 693 and Ryder & Bonham);
   • 46.2. Where a financially advantaged party is a minority shareholder in a company and/or a discretionary beneficiary in a trust and directors or trustees seem more than willing to declare dividends or make distributions to fund litigation for the financially advantaged party against the disadvantaged party;
   • 46.3. Where a financially advantaged party has relatives or associates who are prepared to fund the litigation against the financially disadvantaged party in circumstances where the financially disadvantaged party does not have the same support from third parties (Hurford & Hurford [2016] FamCA 328).
4. Once the relevant matters in s 117(2A) have been considered, then the overriding question is whether or not there are circumstances that justify making a costs order which is just in the circumstances of a particular case. In my view the statements made by McClelland J at [94] and [95] of Selena place an unwarranted gloss upon the preamble to s 117(1) and the clear words of s 117(2) of the Act. I do not accept I am precluded from making a dollar for dollar order because its quantum would not be certain and only able to be ascertained on each occasion the husband pays monies to his lawyers or other professionals for their services in respect of the case.

1. I have already considered the parties' financial circumstances in determining the applicant wife's claim for spousal maintenance.
2. The respondent husband is in a far superior position in terms of his disposable income in meeting his ongoing legal costs. Part N of his financial statement confirms that he is paying $1,000 per week to his solicitors on account of ongoing legal costs and disbursements. The Costs Notice filed on 11 August 2025 by the respondent husband discloses that he has paid in full the sum of $36,597 to his solicitors and has unbilled WIP of about $8,000. Whilst the said Notice does not disclose the source of payment, I am entitled to infer given the amount currently paid by him that most, if not all, of those costs are being met from his income. Future costs are estimated to be in the sum of $43,000.
3. The applicant wife has paid to date the sum of $22,322 to her solicitors. She has billed (but unpaid) and unbilled legal costs of $27,123. Future costs are estimated to be between $48,300 to $72,700 depending on the upper or lower limits estimated. The source of funds used to pay her legal fees are from her savings. In other words, the applicant wife is depleting her capital to pay her solicitors. The applicant wife should not be expected to draw on her savings and deplete capital before consideration is given to a claim for maintenance or litigation funding.[20]
4. The respondent husband correctly identifies that there is no evidence to suggest that the applicant wife's solicitors would cease to act for her unless costs are secured on an ongoing basis. However, this is not an essential precondition to an order for costs being made.[21]
5. This is a case involving a long marriage of about 30 years. There is no dispute that the applicant wife has not engaged in paid remuneration since 2017. The respondent husband may now be sceptical of the applicant wife's incapacity for paid employment. Regardless, that was the arrangement that the parties acquiesced to during the latter stages of their marriage. It has been long recognised by this Court that the ability to earn a substantial income is one of the greatest resources that a party can take from a marriage. The respondent husband is in such a position.
6. As stated above, the making of a "dollar-for-dollar" order is a discretionary exercise. In balancing the parties competing applications in this case, I am persuaded that it is just to make an order as sought by the applicant wife for litigation funding.
7. The applicant wife seeks that the "dollar-for-dollar" order be made on the basis that the respondent husband pay to her, costs (whether paid or unpaid) incurred prior to the commencement of proceedings, and up to and including the date of this order. In other words, that if any such order is to be made, it should be retrospectively applied.
8. This issue was considered in the decision of Atkins (supra) by Watts J. His Honour observed that there is power to make a retrospective order (see Paris King Investments Pty Ltd & Rayhill [2006] NSWSC 578 at [31]). As his Honour goes on to note in his judgment, any such order as it applied to a past period would remove a fundamental characteristic of the "dollar-for-dollar" order, namely the ability of the husband to control what is paid to the wife by making decisions about what he pays, or someone else pays on his behalf for legal costs and disbursements.[22] His Honour declined to make an order which is retrospective in that case.
9. I respectfully adopt the reasoning of Watts J in these reasons, and accordingly, decline to make a retrospective order as sought by the wife.

1. The parties have already attended a private mediation. Whilst unable at that stage to reach final agreement, the parties joined in consenting to an order that they participate in a Judicial Settlement Conference on 31 October 2025. If the matter does not resolve at that juncture, the matter has been listed for a Compliance and Readiness Hearing on 9 December 2025.
2. The parties are represented by experienced legal practitioners and are well resourced. It is hoped that with the interim financial applications having been dismissed, the parties can now concentrate on resolving their overall dispute on a final basis.
3. For all of the above Reasons, the Court makes the Orders set out at the commencement of this Judgment.

I certify that the preceding one hundred and twelve (112) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dickson.

[1] This sum was reduced from the amount originally sought by the wife in paragraph 1 of her Response to Initiating Application filed 7 April 2025, which sought the sum of $1,950 per week.

[2] Family Law Act 1975 (Cth) s 74.

[3] Family Law Act 1975 (Cth) s 75(1).

[4] See also the decision of Brown & Brown [2007] FamCA 151; [2007] FLC 93-316, [161].

[5] Mitchell & Mitchell [1995] FamCA 32; (1995) FLC 92-601, [81,995].

[6] Redman & Redman [1987] FamCA 2; (1987) FLC 91-805, [76,081].

[7] See the Affidavit of Ms Morley filed 7 April 2025 at paragraph 88.

[8] See the Affidavit of Ms Morley filed 7 April 2025 at paragraph 89.

[9] See the Affidavit of Ms Morley filed 7 April 2025 at paragraph 94.

[10] See the Affidavit of Mr Davers filed 1 August 2025 at paragraph 89.

[11] See the Affidavit of Ms Morley filed 7 April 2025 at paragraph 90.

[12] See the Affidavit of Ms Morley filed 7 April 2025 at paragraph 97.

[13] Counsel for the husband did not address the Court on this alternate proposal at hearing.

[14] Chapman & Chapman [1979] FamCA 14; (1979) FLC 90-671.

[15] See the Affidavit of Ms Morley filed 7 April 2025 at paragraph 105.

[17] Family Law Act 1975 (Cth) s 4AB(2)(g).

[18] Wilson & Wilson [1989] FamCA 34.

[19] Zschokke & Zschokke [1996] FamCA 79; (1996) FLC 92-693; Strahan & Strahan (Interim Property Orders) [2011] FamCAFC 126; (2011) FLC 93-466.

[20] Brown & Brown [2007] FamCA 151; [2007] FLC 93-316; Garston & Yeo (No 2) [2019] Fam CAFC 139.

[21] Strahan & Strahan (Interim Property Orders) [2011] FamCAFC 126; (2011) FLC 93-466; Paris King Investments Pty Ltd & Rayhill [2006] NSWSC 578.

[22] Atkins & Hunt & Ors [2018] FamCA 14, [71].