Sections 79 and 80(1)(h) of the Family Law Act confer power on the Court to make orders for an interim property settlement including for litigation.
(1) Section 79 confers a discrete power to make orders for property settlement and the Court may exercise that power through a succession of orders until the power is exhausted or until a final order dealing with all the known property of the parties is made:
(2) Section 80 is not, in itself, a source of jurisdiction for such an order to be made. Rather, that section is an “enabling provision” that provides various ways in which the general power in s 79 may be exercised This includes, by s 80(1)(h) of the Act, the making of a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further order.
(3) There are two stages to the hearing of an application for interim property adjustment orders:
(a) The first stage is a “procedural step” which requires an analysis of whether the circumstances of the case trigger the Court’s power to invoke s 80(1)(h) to make an order for partial property adjustment. At this stage, the overarching consideration is the interest of justice.
(b) The second stage is the “substantive step” where the provisions of s 79 must be considered and applied, but with limitations, given that it is not the final hearing.
(4) The overriding consideration at all stages of the process is that the Court is satisfied that it is “just and equitable” to make the order in circumstances before the Court.
(5) There is no barrier or threshold requiring an applicant to establish “compelling circumstances” at either the first or second stages of the Court’s consideration.
(6) While the usual s 79 considerations apply to the second substantive step in the process, a detailed analysis of those considerations is not required at an interim hearing.
(7) In evaluating an application for a litigation funding order, it is appropriate to have some regard to the fact that, in family law proceedings, one party may have the predominance of resources.
(8) In that respect the authorities are quite clear that, wherever possible, the Court should endeavor to even out the playing field between litigants where one party has predominant control of and access to the matrimonial property pool.
(9) In the context of interim property orders,
It is a situation where one party to the marriage controls almost exclusively what might be described as the wealth of the parties and has control of the bulk of the assets and funds of the parties, where an order may be made to ensure that the other party, who does not have the fortune of controlling those funds, at least has an equal or near equal opportunity to present his or her case.
It is not possible, in interim proceedings, to undertake an extensive analysis of the parties’ evidence, in respect to those matters that the Court is required to consider pursuant to s 79(4) of the Act.
It is, nonetheless, necessary for some consideration to be given to those matters, primarily for the purpose of the Court being satisfied that, at the final, a party is likely to receive, by way of final orders for property adjustment, an amount which is at least equivalent to the amount of property that he/she is seeking by way of interim property distribution.
Care must be taken not to potentially defeat any parties claim or legitimate expectations in a final hearing, including the fact that a party should not be required to liquidate an asset reasonably sought to be retained in the final hearing.
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