Toft & Royce

In *Toft & Royce* [2013] FamCA 372, the Family Court of Australia considered an application by the husband, Mr Toft, for a partial distribution of property from the net proceeds of sale of the parties' former home, which amounted to $1.445 million held in his solicitor's trust account. The wife, Ms Royce, opposed any distribution, seeking that the funds remain in trust until final settlement.

The primary legal issue before the Court was whether it was just and equitable to make an interim property order under section 79 of the *Family Law Act 1975* (Cth), authorising a partial distribution of funds. This required the Court to consider the principles governing interim property orders, particularly in light of the High Court's decision in *Stanford & Stanford* [2012] HCA 52, and the Full Court's decision in *Strahan v Strahan* [2009] FamCAFC 166. The Court also had to assess the available evidence, which was largely presented on the papers, to determine the parties' respective financial positions and the appropriateness of the husband's requested distribution.

The Court reasoned that while interim property orders are exceptional, they can be made where it is just and equitable to do so, with the overarching consideration being the interests of justice. Applying the *Stanford* approach, the Court first identified the parties' legal and equitable interests and then considered whether it was just and equitable to alter those interests. Despite the wife's concerns about disclosure and the husband's expenditure of funds post-separation, the Court found a justifiable basis to make an order in the husband's favour. The Court noted that it was unable to make significant findings of fact due to the evidence being untested, but concluded that an interim distribution of $400,000 to the husband was appropriate in the circumstances.

The Court ordered that the husband and wife do all things necessary to release $400,000 to the husband by way of a partial distribution of property. Save for costs, the interim application and response were otherwise dismissed. The Court also made specific orders regarding the process for any applications for costs.