Novakovic and Novakovic and Ors

In *Novakovic & Novakovic and Ors* [2012] FamCA 809, the Family Court of Australia considered applications for interim costs orders. The Applicant, Ms Novakovic (the wife), sought funds to prosecute her case, as did the Fourth Intervener, an infant child represented by his Case Guardian. The Respondent, Mr Novakovic (the husband), and the First and Second Interveners opposed the Applicant's application, alleging an interest in the relevant funds via a constructive trust.

The primary legal issues before the Court were whether it had the power to make an order for the payment of moneys in favour of the Applicant against the Respondent, and whether any such sum could be directed from funds held in a controlled monies account by the parties' solicitors. Additionally, the Court had to determine if it could make an order for costs against either the wife or the husband in favour of the Fourth Intervener, who sought funds to meet the costs of ongoing litigation.

Collier J applied principles from cases such as *Barro v Barro*, *Poletti*, *Hogan & Hogan*, and *Breen v Breen*, which establish that interim costs orders are appropriate where a party demonstrates a need for funds to prosecute their case and the other party controls the relevant assets and income. The Court found that it had the power to make an order for the Applicant's costs, and that such an order could be satisfied from the controlled monies account, provided sufficient funds remained. However, the application by the Fourth Intervener was dismissed due to a lack of evidence establishing a need for funds.

The Court ordered the husband to pay $120,000 to the Applicant's solicitors within 28 days for her costs, with provisions for payment from the controlled monies account if not paid within that timeframe. The Court noted that the treatment of this sum as part of the wife's property settlement entitlement would be determined by the Trial Judge. The application by the Fourth Intervener for costs was dismissed, and the costs of the hearing were reserved to the final hearing.