When a relationship ends, one of the most contentious issues is deciding who will reside in the matrimonial home and who must vacate. If the parties are unable to reach an amicable agreement, they may have to turn to the Family Law Court to seek an order for sole occupation of the home, in the event there is no intervention order proceeding. This process can be complex and emotionally challenging, especially without the guidance of experienced property dispute lawyers Melbourne. Rowan Skinner is a Family Law Specialist with expertise in property disputes.
In a recent case, Sarto & Sarto [2022], the Federal Circuit and Family Court of Australia addressed a dispute where both the husband and wife sought sole occupation of their former family home. This case highlights the difficulties involved when neither party is willing to vacate the property.
The Case | Property Dispute Lawyers Melbourne
In Sarto & Sarto, the Wife was the sole registered owner of the property. After the couple separated, she vacated the home but later sought an exclusive occupation order to return. Meanwhile, the Husband, who continued to live in the home post-separation, sought his own order for sole occupation. The situation quickly became a contentious battle over who had the right to stay.
The Husband claimed he had contributed to the purchase of the property, but he failed to provide specific evidence to support this claim. The Wife, on the other hand, maintained that the purchase was entirely her doing.
The Court’s Decision
The Magistrates’ Court of Western Australia initially dismissed both applications. On appeal, however, Justice Austin found that the magistrate had applied incorrect principles in evaluating the parties’ competing applications. Additionally, the magistrate did not attempt to resolve the factual conflict of who contributed to the purchase of the property.
Justice Austin at [24] discussed how the magistrate wrongly assumed the Husband had some inchoate interest in the property merely because it was acquired during the marriage. While the magistrate dismissed the Husband’s request for an injunction, the wife’s orders were also refuted as the magistrate decided that no order was necessary.
The Full Court of the Family Court referred to matters which should be considered by any Court when deciding whether to give a spouse exclusive use or occupation of the matrimonial home in Davis and Davis (1976) FLC [90]-062. There it said (at p. 73,309):
“The criteria for the exercise of the power under s 114(1) are simply that the court may make such order as it thinks proper. The matters which should be considered include the means and needs of the parties, the needs of the children, hardship to either party or to the children and, where relevant, conduct of one party which may justify the other party in leaving the home or in asking for the expulsion from the home of the first party.”
The only way the Husband could have remained in the home was by ‘securing an injunction to restrain the wife from exercising the rights which attend her legal title’ at [20]. Consequently, the Husband was unable to demonstrate that it would be “proper” for the Court to grant an injunction that would deprive the Wife of her legal right to possess the property. As a result, the Court ordered the Husband to vacate the home immediately.
Contact Rowan Skinner Today | Property Dispute Lawyers Melbourne
If you need assistance from a Melbourne Family Law Specialist regarding a property dispute or any other family law matter, please contact our team at Rowan Skinner & Associates Lawyers on (03) 9995 9155 for a no-obligation discussion about your case. We service clients in Melbourne, Melbourne Northern Suburbs, such as Northcote, Alphington, Carlton, Fitzroy, North Fitzroy, Kew and Heidelberg, as well as South Melbourne and South Yarra.
For more insights, be sure to check our other blog posts, including how spousal maintenance is calculated in Australia and the rules around child custody and access.
Rowan Skinner is a highly skilled family lawyer with over 35 years of experience across various legal roles and jurisdictions. Rowan specialises in resolving family law disputes such as divorce, financial settlements, child custody and domestic violence cases. Through his diverse and extensive experience, Rowan has a deep understanding of the complexities and nuances involved in family law. Rowan is a skilled negotiator and litigator who follows a compassionate and client-focused approach which prioritises helping you navigate what can be an emotional and challenging time.