Loomis & Ors and Thurston (No. 2)

In *Loomis & Ors and Thurston (No. 2)* [2014] FamCA 627, the Family Court of Australia considered competing interim applications made by Mr Loomis (first applicant) and Ms Thurston (respondent) in property adjustment proceedings. Mr Loomis sought interim litigation funding, while Ms Thurston sought orders for funds held in a solicitor's trust account to be paid into a superannuation fund, used for the purchase of a new property, and to cover private school fees for the parties' child. The dispute arose from the sale of three properties, with the net proceeds held in trust pending final resolution of the parties' financial claims.

The court was required to determine whether to grant Mr Loomis's application for interim litigation funding, and to consider Ms Thurston's applications for the release of funds for superannuation, a property purchase, and school fees. Specifically, the court had to assess the appropriateness of releasing funds for a new property purchase, given previous court orders and undertakings, and the fact that the parties' accommodation needs were met. The court also had to consider whether to order the use of funds for private school fees, in light of Mr Loomis's opposition and the relevant provisions of the *Family Law Act 1975* (Cth) concerning child maintenance.

Justice Forrest dismissed Mr Loomis's application for litigation funding, finding insufficient evidence to justify using the court's powers to release funds for this purpose given the parties' competing claims to the entirety of the remaining assets. Ms Thurston's application to use funds for a new property purchase was also dismissed, with the court finding that she and the child had suitable interim accommodation and that the proposed purchase was a unilateral action taken without Mr Loomis's agreement or court sanction, raising concerns about the risk of funds being placed beyond the court's reach. The application for school fees was dismissed on the basis that it constituted a child maintenance order, which could not be made while an application could be made under the *Child Support (Assessment) Act 1989* (Cth). The court ordered that the majority of the funds held in the solicitor's trust account be preserved pending finalisation of the property proceedings, save for the payment of single expert valuation reports. A portion of the funds was ordered to be paid into the parties' self-managed superannuation fund, with restrictions on withdrawal.