Tanner & Tanner

In the matter of *Tanner & Tanner*, the applicant wife sought orders for the appointment of a trustee for the sale of the former matrimonial home and for the proceeds of sale to be used to discharge two mortgages. The respondent husband opposed these orders, proposing a sale of the home at a later time and the use of proceeds from investment properties to pay his personal credit card debts. The husband was incarcerated following a violent attack on the parties' daughter, which led to the final separation of the parties.

The court was required to determine whether it was proper to make the orders sought by the wife concerning the sale of the family home. Specifically, the court had to consider the wife's application for appointment as trustee for sale, the proposed use of sale proceeds to discharge mortgages, and the husband's opposition and counter-application regarding the sale of investment properties and the allocation of those proceeds to his credit card debts.

Hannam J reasoned that the wife had demonstrated an urgent need to meet ongoing liabilities, which she lacked the resources to do, while the husband was not contributing financially and his release from custody was uncertain. The court found that the husband's opposition to the sale of the family home was unsubstantiated, as he lacked the capacity to purchase it in the future, and the wife was burdened by the high cost of servicing its mortgage. Consequently, the court considered it proper to make the orders sought by the wife. The husband's application to use proceeds from investment properties to pay his credit card debts was dismissed, as the court was not satisfied these were necessarily matrimonial debts and that sufficient funds would be available after other essential costs.

The court ordered that the applicant wife be appointed trustee for sale of the former matrimonial home, vesting the property in her for this purpose. The wife was authorised to undertake necessary rectification works to prepare the property for sale, with costs to be paid from the trust account from the sale of investment properties, or by the wife initially and reimbursed later. Upon settlement of the family home sale, proceeds were to be used for agent and legal fees, outstanding rates, and the discharge of specified mortgages, with any balance to be deposited into the trust account pending further order. The husband's application was dismissed.