Parties Dispute Orders Relating to Property Settlement

Sarto & Sarto [2022] FedCFamC1A 16 (10 February 2022)

The Magistrates Court of Western Australia made orders to determine all outstanding applications for interim relief made by the parties within property settlement proceedings.  The wife seeks leave to appeal an order dismissing her application for interim exclusive occupation of the family home, of which she is the sole registered proprietor.  The Court, in adjudicating this dispute, assessed whether the appealed order was patently made in error. 

Facts:

On 20 September 2021, a magistrate of the Magistrates Court of Western Australia made orders to determine all outstanding applications for interim relief made by the parties within property settlement proceedings.  The wife appeals from a single order made dismissing all interlocutory proceedings.  The effect of that order was to dismiss the wife’s interim application for exclusive use and occupation of the Town Y property; for the Respondent Husband do all acts and things necessary, at his expense, to vacate the Town Y property and deliver up to the Applicant Wife or her nominee, all keys, garage or other remote controls, and alarm codes for the Town Y property; and cause the Town Y property to be rectified to the same condition as the property was in when the Respondent Husband commenced sole occupation of the property.  

The appealed order also dismissed the husband’s countervailing application for an interim order for the Husband to have exclusive use and occupation of the Town Y property.  The Town Y property (“the property”), possession of which the parties were disputing, was the former family home.  The wife was, and remains, the sole legal proprietor of the property.  The wife departed the property upon the parties’ marital separation in January 2021, leaving the husband in occupation of it.

By July 2021, when she commenced proceedings for property settlement, she wanted to return and enjoy exclusive occupation of the property, but the husband refused to vacate it.  The dismissal of the parties’ interim applications in respect of the property left their legal rights undisturbed.  The wife owns the property as she is the sole registered proprietor.  The husband claims an equitable interest in it, which he sought to protect by the registration of a caveat over the title, though his claim is disputed and so far remains unproven.

The husband alleges he contributed all of the money to purchase the property, though he adduced no specific evidence as to how he did so.  The wife alleges the purchase price was funded by the use of money from a joint bank account and an advance from a corporate trustee of a family trust.  The magistrate did not purport to resolve the factual conflict over the contributions made to the purchase price, nor was any finding made that the husband holds an equitable interest in the property.  On the contrary, the magistrate made another order directing the husband to remove the caveat he had registered over the property.

Issue:

Whether or not the leave to appeal should be granted.

Applicable law:

Family Law Act 1975 (Cth), Pts VII, VIII s 79 - provides that in any proceedings between spouses for property settlement under s 79 of the Act, the first task is to identify the parties’ existing legal and equitable property interests and consider whether it is just and equitable to make any property settlement order at all. 

Analysis:

Being the sole legal proprietor of the property, absent an injunction to the contrary, the wife is entitled to exclusive possession of it.  There was and is nothing to prevent her from ejecting the husband from the property as a trespasser – forcibly and with police assistance if necessary.  She could have initially remedied her grievance in that way without the need to bring her interim application, since the magistrate’s imprimatur was not needed to exercise the full measure of her legal rights in whatever lawful way she sees fit.  Since the parties seem not to have fully appreciated the nature and extent of the wife’s existing legal rights and the hearing was conducted wrongly believing she required the magistrate’s permission to regain possession of the property, the grant of leave to appeal and its success will solve any misunderstanding and avoid the prospect of police ambivalence about their involvement when summoned to assist, if that becomes necessary.

In any proceedings between spouses for property settlement under s 79 of the Act, the first task is to identify the parties’ existing legal and equitable property interests and consider whether it is just and equitable to make any property settlement order at all.  It must not be assumed the spouses’ property rights or interests are, or should be, different from those that already exist.  Aside from the wife’s assertion that the property was registered in her sole name because she was “responsible for the purchase”, there was no other evidence before the magistrate as to the parties’ intentions concerning the acquisition of title in the property.

Conclusion:

The Court granted the leave to appeal.  The Application in an Appeal filed on 18 November 2021 is dismissed.  The appeal is allowed.  Order 9 made on 20 September 2021 is set aside.  The husband is ordered to vacate the D Street, Town Y property, and is restrained from entering upon the property.  Any and all other outstanding applications for interim relief made by the parties up to and including 20 September 2021 are dismissed.  The appellant’s application for costs of and incidental to the appeal is dismissed.  The parties’ respective applications for costs certificates in the appeal pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) are dismissed.