SELSTEAD & REIDLER

In the Family Court of Australia, Judge B Smith considered competing applications concerning the former matrimonial home. The wife, Ms Reidler, sought sole use and occupation of the property, while the husband, Mr Selstead, applied for its sale. It was agreed that if the house were not sold, the wife would have sole use and occupation, particularly for the benefit of the children.

The court was required to determine whether the husband had discharged the legal and evidentiary onus to justify the sale of the former matrimonial home. Specifically, the court considered the husband's arguments regarding his proper housing needs and legal costs, and whether his financial position supported his application for sale over the wife's claim for continued occupation.

Judge B Smith reasoned that the husband's income exceeded his expenses, even when accounting for the cost of renting a suitable alternative property. The court found that the husband had the financial capacity to meet his current legal expenses and to save for future legal costs, which were largely anticipated to arise closer to a final hearing. Crucially, the wife presented a strong, arguable case that she would be able to retain the former matrimonial home at the final property settlement. Consequently, the husband had not met the onus required to displace the wife's claim.

The court ordered that the wife, Ms Reidler, have sole use and occupation of the former matrimonial home, to the exclusion of the husband, Mr Selstead. The husband was restrained by injunction from entering the property or interfering with the wife's occupation. The respondent's costs of this interim application were reserved.