Husbands Seeks Sole Occupancy of Home
Perica & Perica [2022] FedCFamC1A 184 (14 November 2022)
The applicant appeals from an order dismissing an Application for Review of a registrar’s decision. The registrar dismissed the applicant’s interim property application for sole occupation. The Court, in resolving this dispute, relied upon the principles under Medlow & Medlow. 
Facts
The husband and wife were in a relationship for approximately 16 years from 1999 until 2015. Thereafter they remained living under the one roof until the husband left the former matrimonial home (“the home”) in 2018. The wife has remained living there since. Three now adult children were born to the parties’ relationship.
In 1992, the husband purchased in his sole name the land on which the home is located and subsequently built it. The wife moved into the home at the time of the commencement of the relationship in 1999. After separation, in 2019 the husband transferred the home into the wife’s sole name, although at the commencement of these proceedings, he lodged a caveat over it. In September 2021, the husband initiated property settlement proceedings.
On 15 February 2022, he filed an Application in a Proceeding seeking sole occupancy of the home, that the wife vacate the home, and that she be restrained from entering or being within 100 m of it. The wife sought that the application be dismissed with costs. The Senior Judicial Registrar heard the application and made the orders as outlined at [1]. On 16 May 2022, the husband filed an Application for Review of the Senior Judicial Registrar’s decision and after a hearing on the papers, the primary judge dismissed it.
The husband now appeals from that decision, although he acknowledges he needs leave to bring any such appeal.
Issue
Whether or not the appeal should be granted.
Applicable law
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34 - provides that leave to appeal will only be granted where: (a) The decision of the primary judge was “attended by sufficient doubt” to warrant its reconsideration; and (b) If leave were refused, a “substantial injustice” would ensue.
Analysis
Assuming that the primary judge was there saying that no sole occupation order could be made until after a trial, that is plainly erroneous, particularly as the husband only sought it on an interim basis (although perhaps his application did not specifically make that clear), and given that it would ordinarily be counter-intuitive to, on a final basis, allow sole occupation of a property not owned by a party. Even the most cursory examination of that demonstrates that no injustice – much less any substantial injustice – would flow to the husband if leave were refused. His paying rent, rather than living rent free in the home he gifted to the wife post-separation, is plainly something which, upon reflection, he now regrets, but is entirely of his making. How that could be unjust is entirely unclear. Although it might be that the husband also seeks to appeal the other aspects of the Senior Judicial Registrar’s decision dealt with by the primary judge in the review, no ground challenges them.
Conclusion
Leave to appeal is refused. The Application in an Appeal filed 17 October 2022 is dismissed. The Notice of Appeal filed 18 August 2022 is dismissed. The applicant is to pay the respondent’s costs in the sum of $1,223.17 within 28 days.
