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Property – interim orders to sell former matrimonial home not final orders…

…wife’s final application rendered otiose – wife retained ability to purchase home

In Kartal & Templeman [2022] FedCFamC1A 46 (4 April 2022), Austin J heard a wife’s application for leave to appeal against interim orders made by a magistrate in the Magistrates Court of Western Australia, for the sale of the former matrimonial home.

The parties had significant debt. The wife sought interim orders for the property to be transferred into her sole name so that she could re-finance the debt. The husband sought the interim sale of the property and for the debts to be discharged from the proceeds of sale. The magistrate made orders in the terms of the husband’s application. The wife appealed.

Austin J said (from [17]):

“The wife considers the sale orders are final because their execution would preclude her from pressing her application for orders granting her sole proprietorship of the former family home at … trial. While it is true the sale orders render otiose her application for final relief … that consequence does not convert interlocutory orders into final orders.

[18] The orders are not ‘final’ because they do not exhaust the Court’s statutory power and are not dispositive of the parties’ respective applications …

(…)

[22] … If the former family home is sold according to the orders, nothing stops the wife from purchasing the property on the open market with the aid of the same financial assistance she had envisaged … to … acquire the husband’s one-half share. …

(…)

[59] … The wife’s application was to stop the sale by acquiring exclusive legal title in the property. Her aim was to preserve the home for herself …

[60] What then … brought the wife’s application for an interim alteration of property interests within legal principles? Why should she have been able to pre-empt the outcome of the adjustment proceedings … by acquiring exclusive title … ? Why should the husband have been deprived of access to his share of the net equity … ? These were questions she did not answer … ”

The wife’s application was dismissed with costs.

Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).

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