Lovett and Xavier and Anor

The parties to this proceeding are Ms Lovett (the wife) and Mr I Xavier (the husband), with Mr A Xavier (the husband's brother) joined as the second respondent. The dispute centres on substantive property settlement proceedings initiated by the wife, who alleges that the husband has divested himself of assets in favour of his brother to defeat her claim. The wife seeks to reverse these dispositions and has joined the husband's brother as a party, a joinder which the husband contests. The matter came before the Family Court of Australia concerning an interim application by the wife for litigation funding.

The legal issues before the Court were whether it was appropriate to exercise its power to make an interim property settlement order in favour of the wife, and whether such a power should be categorised under section 117 (costs) or section 79 (property settlement) of the *Family Law Act 1975* (Cth). The wife sought $100,000, arguing it was necessary for her to investigate the complex financial affairs of the husband, particularly transactions with the second respondent, which she believes may be designed to defeat her claim. The husband opposed this application.

The Court considered the wife's need for funds to investigate the extent of the marital property, given her assertion that the husband had transferred assets to his brother. The wife argued that the complexity of the husband's financial dealings, involving multiple companies and trusts, necessitated significant forensic accounting. She relied on case law such as *Zschokke v Zschokke* and *Strahan & Strahan*, which suggest that a respondent's relative strength, capacity to meet their own costs, and the applicant's inability to do so are relevant considerations for interim orders. The Court also noted that the complexity of investigating a respondent's financial affairs could weigh heavily in favour of making such an order.

The Court found it just and equitable to make an interim property settlement order in favour of the wife. Accordingly, the husband was ordered to pay the wife the sum of $100,000 by no later than 17 March 2014. This payment was to be deemed the property of the wife at the final trial or upon the making of final orders, irrespective of its application or current possession.