Sarto & Sarto (2022) FedCFamC1A 16

In the case of Sarto & Sarto [2022] FedCFamC1A 16, Austin J delivered ex tempore Reasons for Judgment.

A house was registered in the wife’s sole name. She is the sole registered proprietor. The parties apparently didn’t appreciate the nature and extent of her rights and the Magistrate wrongly assumed the husband enjoyed some form of inchoate proprietary interest in the property.

Incorrect principle was applied.

Austin J reminds us as follows:

“Being the sole legal proprietor of the property, absent an injunction to the contrary, she 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.“

At paragraph 19, Austin J said:

“The husband ultimately seeks to obtain a property settlement order which substitutes him as the exclusive legal proprietor of the property, which the wife resists. But the success of the husband’s claim depends upon an eventual exercise of discretion in his favour under Pt VIII of the Act adjusting the spouses’ existing property interests. Unless and until that adjustment occurs, he has no proprietary interest at all in the property.”

In other words, “his occupation of it is only lawful whilst ever the wife consents“. The wife withdrew her consent and the only way the husband could then be permitted to remain in the property was if he could secure an injunction to restrain the wife and the Magistrate declined to make an Order for an injunction.

It is an interesting reminder that until the adjustment power of the court has been exercised, the existing legal rights can determine interim issues.