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Property – erroneous dismissal of parties’ countervailing applications for sole occupation

In Sarto [2022] FedCFamC1A 16 (10 February 2022), Austin J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, allowed an appeal in a case where the court heard countervailing applications for sole occupation of the former matrimonial home.

The wife had vacated the home upon separation, but sought an exclusive occupation order to move back in, despite being the sole registered owner of the property. The husband had lived in the property since separation and sought a sole occupation order.

The Magistrates Court of Western Australia dismissed both applications. The wife appealed.

Austin J said (from [11]):

“… Being the sole legal proprietor of the property, absent an injunction to the contrary, [the wife] … is entitled to exclusive possession (…)

[14] Regardless of whether or not persons are married, property law governs the ascertainment of their property rights and interests (Wirth v Wirth [1956] HCA 71 …). (…)

[19] The husband … seeks to obtain a property settlement order which substitutes him as the exclusive legal proprietor of the property … [T]he success of the husband’s claim depends upon an eventual exercise of discretion … under Pt VIII of the (Family Law) Act adjusting the … existing property interests. (…)

[20] In the face of the wife’s withdrawal of consent, the only way … the husband could evade ejection from the property was by securing an injunction to restrain the wife from exercising the rights which attend her legal title …

[21] … Evidently, the magistrate concluded it was not proper to do so, because the injunction sought by the husband was refused. (…)

[24] … [T]he magistrate also refused to make the orders sought by the wife … The magistrate decided no order was necessary, but that conclusion was reached on the false premise that making no order at all would then permit the husband to continue residing in the property (…)

[30] … The husband … has not demonstrated it would be ‘proper’ to grant an injunction depriving the wife of her legal entitlement to possession of the property. An order should be made requiring the husband to immediately vacate the property. … ”

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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