HUSBAND HAS NO CAPACITY TO BRING ARREARS UP TO DATE AND WIFE IN URGENT NEED OF MONEY; SALE OF FORMER MATRIMONIAL HOME IS SOUGHT
BALSOM & HAGERMAN
FEDERAL CIRCUIT COURT OF AUSTRALIA
[2020] FCCA 1820
This is an interim application seeking the sale of the former matrimonial home of the parties
FACTS:
Mr. Balsom (the husband) filed an interim application seeking the sale of the former matrimonial home of the parties, which is in the sole name of Ms. Hagerman (the wife). The property secures two mortgages or two sets of borrowings: one for $133,000, which seems to be a conventional home mortgage, and further borrowings of about $51,000, which were business borrowings related to the wife’s business, which has ceased trading in recent months.
The wife vacated the property on separation, leaving the husband as the occupier. The mortgages have not been paid since about October 2019, and there are presently arrears in excess of $9,000 in the mortgage or mortgages.
The husband is a disability pensioner paid $425 a week. He has no capacity to bring the arrears up to date, nor does he have an incapacity to borrow to pay out the wife. The wife’s financial position is difficult. She has breast cancer diagnosis. She has no money and is living with friends. For her, it is urgent to obtain some money. The wife wants the property listed for sale within 14 days. The husband seeks a delay of four months before he is required to vacate the property and provide vacant possession.
ISSUE:
When should the property be listed for sale?
When shall the husband be required to vacate the property after a contract of sale is signed?
HELD:
Court decided, first, when the property should be listed for sale, and second, when the husband shall be required to vacate the property after a contract of sale is signed.
Parties agreed to appoint an agent immediately. The applicant husband sought that the property be not listed for two calendar months. The wife said that the property should be listed for sale as soon as possible, but within 14 days, and the husband should depart from the property on the signing of the contract.
The minimum period ought to be about a month for the husband to vacate the property. If there is an immediate contract or if a contract is signed immediately, to the Court’s view, the earliest vacant possession would be required within one month or 30 days. However, it is highly unlikely that a property in the rural area in Darwin at the moment, with the depressed property market, would be sold within the minimum time, in other words, immediately on listing. There is likely to be a built-in delay before a contract is signed.
The Court proposed to make orders for the property to be listed for sale within 14 days, but in relation to where the wife seeks the immediate departure of the husband from the property on the signing of that contract, it proposed to give the husband 14 days from the signing of the contract to remove his personal effects, household contents, etc.