Akhtari and Alghazari (No 2)

In Akhtari and Alghazari (No 2), Watts J of the Federal Circuit and Family Court of Australia considered applications by both the wife and the husband concerning interim property settlement, exclusive occupation of properties, and spousal maintenance. The wife sought personal protection orders, exclusive occupation of an investment property, and interim property settlement. The husband did not oppose the continuation of personal protection orders for the wife.

The court was required to determine several key issues. These included whether to grant the wife exclusive occupation of the parties' investment property, or alternatively, whether she and the children should return to the former matrimonial home. The court also had to consider the wife's application for interim property settlement, specifically the sale of the former matrimonial home and the distribution of its proceeds. Finally, the court was asked to determine the wife's entitlement to periodic spousal maintenance and whether the husband had the capacity to pay.

Watts J reasoned that the wife, as the primary carer of the parties' two young children, should have the discretion to choose the most suitable occupancy arrangement. Given the uncertainty regarding the children's time with the husband and the wife's choice of the lower-value investment property, the court found it appropriate to grant her exclusive occupation of that property. Regarding property settlement, the court noted the absence of a clear source of funds for the husband to meet the wife's settlement demands. Consequently, an order was made for the sale of the former matrimonial home, with the mortgage to be discharged and the remaining proceeds to be divided equally between the parties, with any balance held in a controlled monies account. The court also found that the wife met the threshold for spousal maintenance, demonstrating a need, and that the husband had the capacity to pay.

The court ordered that the wife have sole use and occupancy of the Suburb C property and that the husband be restrained from entering it without her consent. The husband was also ordered to facilitate the wife's access to the Suburb E property to collect belongings. The Suburb E property was to be sold by public auction within four weeks, with specific provisions for the appointment of a lawyer and real estate agent, the setting of a reserve price, and the process for sale if the auction reserve was not met. Upon settlement, sale expenses and the mortgage were to be paid, followed by equal distribution of $170,000 to each party, with the balance to be held in a controlled monies account. The husband was ordered to pay periodic spousal maintenance, covering outgoings on both the Suburb C and F Street properties, and a weekly sum of $510 to the wife.