Downie & Lopes

In *Downie & Lopes*, Williams J considered an application for the sale of the former matrimonial home. The parties, both aged 37, had separated in May 2019 and made final property orders by consent in July 2019, which included an order for the wife to vacate the matrimonial home. However, the wife remained in the property and sought to remain there for five years prior to a sale, while the husband sought an immediate sale due to financial difficulties in meeting mortgage repayments. At the commencement of the hearing, the parties consented to setting aside the July 2019 final property orders.

The court was required to determine whether the former matrimonial home should be sold pending the final resolution of the property dispute. Subsidiary issues included whether the wife should be permitted to remain in the property until sale, the duration of any such permitted stay, the payment of $15,000 to the wife as an interim property settlement, responsibility for mortgage and outgoings pending sale, and the selection of a selling agent and solicitor.

Williams J reasoned that an interim sale of the property was necessary due to the parties' inability to meet the substantial monthly mortgage repayments. The court noted that the redraw facility used to cover payments was nearing depletion, and neither party had the capacity to meet ongoing costs. A mortgagee sale was also a risk, which would likely result in less favourable outcomes for both parties. The court applied principles relating to the court's power to order interim sales under s.114(3) of the *Family Law Act 1975* (Cth) and the need to preserve assets and avoid financial hardship.

The court ordered that the final property orders of 19 July 2019 be set aside by consent. The husband was ordered to pay the wife $15,000 within seven days as an interim property settlement. The wife was ordered to vacate the property within 28 days at her expense, ensuring it was left in good condition and all her possessions were removed. Pending her vacating the property, she was to pay all utility bills. Upon her vacating, specified outgoings, including mortgage repayments, were to be paid from the proceeds of sale, with ultimate responsibility to be determined at trial. The parties were ordered to cooperate in listing the property for sale, with provisions for the selection of selling agents and solicitors, and terms for accepting offers. Proceeds of sale were to be applied first to sale costs, then to discharge the mortgage, then to outgoings, with the balance held on trust. The husband was permitted to negotiate with the mortgagee for a moratorium on payments, and a Registrar was appointed to sign documents if either party failed to comply with their obligations. All other extant interim applications were dismissed.