A NSW Wife v A NSW Husband

A wife, a NSW resident, commenced proceedings against her husband in the Supreme Court of New South Wales, seeking restoration of possession of the family home and remedies for trespass. The husband had locked the wife out of the family home approximately three weeks prior to the proceedings. The wife argued that she needed to be close to medical care, which was located near the family home. The husband did not contest that the wife could live in the family holiday house, though it was more distant from medical care. The parties had reached agreeable arrangements regarding the children's living arrangements.

The court had to determine whether the wife should be restored to possession of the family home, and whether the relief should be granted under the common law or the Family Law Act 1975. The court found that the wife's need for proximity to medical care was a significant factor in favour of restoring possession to her. The court also found that the action was appropriately cross-vested to the Family Court of Australia under the Jurisdiction of Courts (Cross-Vesting) Act 1987. The court exercised its jurisdiction under the Family Law Act 1975 to make orders.

The court made an order that the husband allow the wife to occupy the family home. The court also ordered that the parties share the costs of the cross-vesting application. The wife was awarded costs of the urgent interlocutory application up until the time of the cross-vesting application.