An ACT Supreme Court judge has urged an overhaul of the territory's trespass laws after a woman's allegedly abusive ex-husband moved into her house after she died from cancer and stayed for more than a year.
Subscribe now for unlimited access.
$0/
(min cost $0)
or signup to continue reading
It is understood the man was forcibly removed from the property in Canberra's south on Thursday following a lengthy and tangled legal battle through the ACT's courts.
The woman had fled the couple's home in Queensland when their troubled nine-year marriage ended in 2014 and alleged the relationship had been marred by a long history of violence, threats and intimidation.
She had been granted a protection order against the man after a serious domestic violence incident shortly before she left.
The woman moved to the ACT with her three children soon after the incident and bought the house in Macarthur.
She died after a cancer battle in early 2015.
Her brother was appointed executor of her estate and had control over the Canberra house. He also became guardian of the three children, who moved in with him.
Shortly after her death, the woman's ex-husband moved into the property without permission and refused to leave.
Her brother launched legal action, firstly in the ACT Civil and Administrative Tribunal, after repeated attempts to get the man to leave the house.
The tribunal found the woman's ex-husband had no legal right to be on the property and was trespassing.
He was ordered to leave the house immediately.
When the man again refused to leave, the woman's brother took the matter to the Magistrates Court to enforce the tribunal's orders.
But that court has no power to make an order for the recovery of possession of land and the case had to be shifted to the higher court last November.
In a decision published on Thursday, Justice Richard Refshauge noted the legal proceedings had become "complex and protracted" due to "very regrettable gaps in the legislative framework under which the proceedings have properly been taken".
"The policy behind the relevant legislation appears not to have been based on an understanding or appreciation of the options and limits of enforcement of judicial and quasi-judicial orders in this territory and, perhaps, more widely," he said.
Justice Refshauge similarly found the man had no legal right to possess or occupy the house.
"He is, as the ACAT described it, a trespasser."
He said the woman's brother was entitled to an order to possess the property, as the executor of his sister's will, and issued a recovery order to forcibly remove the man from the house.
The judge ordered the woman's ex-husband, who didn't show up to court for proceedings, pay her brother's legal costs.
Justice Refshauge said the complexity of the case was "undesirable" and called for reforms to streamline the legal process for trespass matters, which included a suggestion to give the tribunal and Magistrates Court power to enforce orders.
"Clearly, some thought needs to be given to what actual powers it is intended that the ACAT be given when considering a trespass application and, if the restricted view I have taken does not find favour with the legislature, then appropriate amendments need to be made."
