BEKLAR & BEKLAR

In the Family Court of Australia, Ms Beklar (the wife) sought an order for interim costs of $90,000 from Mr Beklar (the husband), or alternatively, payment by way of interim property settlement. The husband opposed the wife's application and sought the sale of a property known as the Suburb T property as a partial property settlement. The final hearing for the property settlement, spousal maintenance, and parenting proceedings was scheduled to commence in a matter of weeks.

The court was required to determine whether to grant the wife's application for interim costs, and if so, in what amount. Additionally, the court had to consider the husband's application for the sale of the Suburb T property as a partial property settlement. The central legal issues revolved around the court's discretion to award costs on an interim basis, the relevant factors to be considered under sections 117 and 74 of the *Family Law Act 1975* (Cth), and whether the husband had the financial capacity to meet the wife's claim. The court also had to assess the appropriateness of ordering the sale of a significant asset prior to the final determination of the property settlement.

The court applied the principles governing interim costs orders, noting that a prerequisite for such an order is the existence of justifying circumstances, such as a disparity in financial strength and the inability of one party to meet their own legal expenses. The court considered the wife's financial position, her legal expenses to date, and her projected future legal costs, alongside the husband's significantly greater financial capacity. The court found that the husband's financial circumstances, particularly in light of conflicting evidence regarding his income, suggested he had the capacity to contribute to the wife's interim legal costs. The court also considered the wife's need to have her legal expenses met to ensure she could be adequately represented at the final hearing, which was deemed to be in the interests of justice. The husband's application for the sale of the Suburb T property was dismissed as premature and potentially unjust given the proximity of the final hearing.

The court ordered that the husband pay the wife $90,000 by way of interim costs, conditional upon the wife providing proof of payment of $15,000 towards outstanding legal expenses from her savings. The payment was to be made in instalments, with the husband to deposit the funds into his solicitors' trust account. In the event the wife did not comply with the condition regarding proof of payment, the amount payable by the husband was reduced to $80,000. The wife's application in a case filed on 30 August 2012 and the husband's response filed on 21 September 2012 were dismissed, excluding any other application for costs.