HUSBAND WANTS THE PROPERTY SOLD URGENTLY DUE TO HIS FORECASTED INABILITY TO MEET FUTURE MORTGAGE OBLIGATIONS

BARNES & WELLSTED

FAMILY COURT OF AUSTRALIA

[2020] FamCA 253

This is a case wherein the husband seeks orders that would allow the sale of the matrimonial home where the wife, who is ill, and the children presently live.

FACTS:

Mr. Barnes (the husband) filed an amended initiating application for orders that would allow the urgent sale of the parties’ matrimonial home at B Street, Suburb C where Ms Wellsted (the wife) and the children are presently residing.  The Application is due to the husband’s forecast inability to continue meeting the mortgage payments.  The husband is unable to meet the $5,000 per month mortgage repayments even at the reduced rate into the future.   There was no evidence that the husband asked for an extension of the reduced mortgage installments payments.

The wife, who had been the subject of radiotherapy treatment, agreed that the property must be sold but had concerns regarding the timing of the sale.  The wife preferred to have the property sold only when the current pandemic restrictions are lifted and the market recovers.

ISSUE:

Whether or not the husband’s urgent Application should be granted given the wife’s condition.

HELD:

In this case, the Court believes that the grant of the relief sought by the husband would severely prejudice the wife. There is no suggestion that she has alternative accommodation if the property were to be sold. The wife’s ill health imposes self-evident limitations on her ability to search for and obtain alternative accommodation if the property were sold. There was no basis for imposing such onerous terms on the wife to make the order sought by the husband, especially given the impending conciliation conference, the likelihood of an extension of the hardship relief terms being granted, and the need for the husband to ask.

Further, the Court opined that with the severely depressed market, it would be foolhardy to say nothing of non-commerciality for the property to be auctioned in the current environment. Since the case is to be listed for conciliation in a little over a month, the parties can give more measured and mature consideration to the proposal for the disposition of the real property.

Under the current regime, the husband enjoys the reduced mortgage installment payment requirements of $5000 per month, which will expire in the next few days with no certainty into the foreseeable future that the current restrictions that have been imposed at a Federal and State level will be relaxed in any way. In all probability, the husband will be granted an extension of the terms of his reduced mortgage installment payments of $5000 per month, but he has not asked for an extension. When compared to the wife’s circumstances, the balance of convenience favors her without a doubt. She is raising children in the former matrimonial home.

The Court urged the parties’ counsels to cooperate, especially in these extremely tumultuous circumstances, to work out a way forward in the best interests of their clients.