Worsnop and Worsnop

In the Family Court of Australia at Sydney, Mrs Worsnop (the wife) sought an order for interim costs of $250,000.00 to be paid to her solicitor from a joint controlled monies account held by the solicitors for both parties. Mr Worsnop (the husband) and an intervenor sought the dismissal of the wife's application. The application was based on the court's discretionary power under section 117(2) of the relevant Act.

The court was required to determine whether there were circumstances justifying an order for interim costs, and if so, to consider the relevant matters under section 117(2A) to assess the quantum of any such order. The wife argued that justifying circumstances existed due to her lack of remunerative employment, her role as primary caregiver for the parties' four children, and the complexity of the substantive proceedings, which were scheduled to commence shortly. The husband and intervenor contended that the wife's application should be dismissed.

Justice Rose found that justifying circumstances were established for an interim costs order in favour of the wife. The court noted the wife's financial dependence, her sole proprietorship of the former matrimonial home where she resided with the children, and the complexity of the legal and factual issues in the substantive proceedings, including the relief sought by the intervenor. While acknowledging the wife had previously received interim costs, the court considered this when assessing the quantum under section 117(2A). The court also took into account the husband's overwhelming liabilities, the limited accessible funds in the joint controlled monies account, and the fact that legal aid had not been provided to the wife.

The court ordered that the husband and wife give all necessary instructions for their respective solicitors to pay the sum of $81,006.75 from the joint controlled monies account to the wife or her solicitor by 28 March 2007. This amount was calculated based on an assessment of necessary preparation and representation at trial, taking into account outstanding UK legal costs and counsel's fees, but excluding an allowance for senior counsel due to limited available funds and the equal entitlement of both parties to the joint account.