Barnes and Wellsted

[2020] FamCA 253

FAMILY COURT OF AUSTRALIA

BARNES & WELLSTED [2020] FamCA 253

FAMILY LAW – PROPERTY – husband seeking orders permitting the urgent sale of the former matrimonial home – wife and children presently residing in former matrimonial home – husband meeting reduced monthly mortgage sums – no evidence he had sought an extension of those arrangements – serious prejudice to wife if application is granted – application refused.

APPLICANT: Mr Barnes

RESPONDENT: Ms Wellsted

FILE NUMBER: MLC 14706 of 2019

DATE DELIVERED: 8 April 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: The Honourable Justice Wilson

HEARING DATE: 8 April 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not applicable

SOLICITOR FOR THE APPLICANT: Lewis Holdway

COUNSEL FOR THE RESPONDENT: Ms L. McCreadie

SOLICITOR FOR THE RESPONDENT: Bayside Family Law Solutions

Orders

1. I dismiss the applicant husband’s application for the auction of B Street, Suburb C  within 24 hours.

2. Costs are reserved by agreement.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Barnes & Wellsted has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 14706  of 2019

Mr Barnes

Applicant

And

Ms Wellsted

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 24 February 2020 a registrar of this court referred to me for my determination the questions raised in the husband’s amended initiating application filed 8 April 2020. 

2. Those applications in large measure address the subject of the initiating application when this proceeding was commenced.  Ms Fielding who represents the husband invited me to consider making orders the effect of which is to require the property of B Street, Suburb C, to be placed on the market within 24 hours with a view to its sale.  The husband has advanced a collection of reasons for the urgency of the application, the most pressing of which, so he says, is his forecast inability to continue meeting the mortgage payments that by agreement with Westpac, the mortgagee, have been recently fixed at $5000 per month. 

3. Previously, pursuant to the terms of the mortgage, the monthly mortgage instalments were in the figure of $10,600 per month.  Ms Fielding told me that her client has been assured that his hardship application for payment of the reduced monthly mortgage amount expires in a few days, hence the perceived urgency.  In further support of her application Ms Fielding invited me to consider the position of the wife.  Ms Fielding says that the wife has been contributing $3000 per month by way of instalments and that the wife has access to an insurance policy in excess of $100,000 which would more than meet the requested sum. 

4. In opposing the application Ms McCreadie of counsel said that the wife agrees that the property must be sold but that timing of the sale is the important issue.  She said that only when the current pandemic restrictions are lifted and the market recovers should the property be sold.  In debate with Ms Fielding I inquired what was the real reason for the perceived urgency.  Ms Fielding said that the father was unable to meet the $5000 per month mortgage repayments even at the reduced rate into the future.  Ms McCreadie invited my consideration of the wife’s circumstances.  She said that the wife had been the subject of radiotherapy treatment. 

5. Ms McCreadie said that the wife’s health was compromised and she also said that by reason of the Coronavirus restrictions the auctioning of properties at the present time is near impossible (that was my interpretation of her submissions).  Ms McCreadie brought to my attention that this case is to be listed for a conciliation conference on 20 May, in the near future, at which time the parties are hopeful that a resolution will be reached.  Ms Fielding replied to the effect that the husband is financially unable to pay for this house and his own accommodation. 

6. It seemed to me that the urgency urged by Ms Fielding was more apparent than real.  The market, as is well known, is severely depressed at the present time and it would be foolhardy to say nothing of uncommercial for the property to be auctioned in the current environment.  This case is to be listed for conciliation in a little over a month, at which time the parties can give more measured and mature consideration to the proposal for the disposition of the real property.  In addition, as is widely well known, largely in pursuance to directives issued by Federal and State Governments, mortgagors have been granted certain leniencies in their repayment obligations under mortgage facilities, an ongoing rolling proposition. 

7. In other words, under the current regime the husband enjoys the reduced mortgage instalment payment requirements of $5000 per month.  That will expire in the next few days and there is 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.  That is another way of saying that in all probability the husband will be granted an extension of the terms of his reduced mortgage instalment payments of $5000 per month.  It seems he has not asked for that extension.  When compared to the wife’s circumstances the balance of convenience favours her without doubt.  She is raising children in the former matrimonial home. 

8. There is no suggestion that she has alternative accommodation if the property were to be sold.  Even assuming an extended settlement might be negotiated, (although there is no certainty one would arise) the wife’s ill health also imposes self-evident limitations on her ability to search for and obtain alternative accommodation if the property were sold in accordance with Ms Fielding’s request.  The grant of relief would severely prejudice the wife in my view.  It seemed to me that there was no basis for imposing such onerous terms on the wife as to make the order sought by the husband especially in view of the impending conciliation conference, the likelihood of an extension of the hardship relief terms being granted and the need for the husband to ask. 

9. I expect both legal representatives to cooperate, especially in these extremely tumultuous circumstances, to work out a way forward in the best interests of their clients to advance this case.  I do not encourage obdurate and difficult proposition being taken.  A degree of cooperation is required in this case and I would expect that it will be shown in the circumstances of this case. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 8 April 2020.

Associate: 

Date:  20 April 2020