VITTORIO & OLIPHANT

In this interim family law proceeding before McClelland J, the wife sought various orders including litigation funding, a partial property distribution, and an order compelling the husband to pay her private health insurance. The husband contended he had the capacity to sell a portion of his share portfolio to satisfy a partial property distribution.

The court was required to determine whether to make an order for costs pursuant to section 117(1) of the Family Law Act 1975 (Cth), and to consider the wife's applications for litigation funding and payment of private health insurance. The court also had to assess the husband's capacity to satisfy a partial property distribution order.

McClelland J reasoned that while a power to make orders for litigation funding might exist, such discretion must be exercised in accordance with relevant legislative criteria, as emphasised in cases such as *Esdale & Schenk*. The court noted that applications for litigation expenses are typically brought under interim property orders rather than the costs power, as section 117(1) presents an obstacle to be overcome. The wife's arguments for costs under section 117(2A)(a) and (c) were not sufficiently established, particularly in light of the husband's submissions regarding the wife's non-disclosure of employment offers. The court found that the husband had the capacity to sell a portion of his share portfolio to satisfy a partial property distribution.

The court ordered the husband to pay the wife $34,800 by way of partial property distribution within 60 days. The wife's application for the husband to pay her private health insurance was stood over, with liberty to apply on seven days' notice. The wife's application in a case filed on 6 July 2017 was otherwise dismissed.