For children, dealing with the separation of parents can be a very difficult and often traumatic experience, creating real instability and disruption in their lives. While parents can be quick to address how much time a child should spend with each parent, the very practical problem of “where” (i.e. the child’s accommodation) the child lives is also a critical issue to be addressed. This is particularly more pressing, where children are no longer able to stay in the matrimonial home because of alleged safety concerns.

What is a sole occupancy order?

The Family Law Act 1975 states that a Court has power to grant an injunction relating to:

1) the use or occupancy of the matrimonial home (for a married couple); and

2) the use or occupancy of a specified residence of the parties and an injunction restraining a party from entering or remaining in that residence or a specified area in which it is situated (for a de facto couple).

An order for sole occupancy in a family law matter is not easy to obtain and should not be used as a “tactical weapon” in any ongoing matrimonial conflict.

A Court must consider the following factors (although not exhaustive) as to whether an order for sole occupancy is “proper:”

1) The parties’ means and needs;

2) The children’s needs;

3) Hardship (as opposed to mere inconvenience) to either party or children; and

4) If relevant, conduct justifying one party being expelled from the home.

Conflict that is having a detrimental effect upon a party and/or children will often be sufficient to tip the balance in favour of the applicant for sole occupancy in a close case, particularly for “high conflict” cases where there are recurrent circumstances of one party and/or the children being subjected to, or exposed to, abuse, neglect or family violence.

To illustrate, we discuss 2 cases where a sole occupancy order(s) were sought.

Saveree & Elenton [2014] FamCA 38 (31 January 2014)

This case is an example of the sort of evidence a Court considered and were satisfied in respect to an order for sole occupancy being “proper.”

In this case:

  • There were allegations of non-physical family violence and abuse. The husband was very verbally aggressive, abusive and damaged furniture etc. over a 5-year period;
  • There was compelling evidence of the detrimental effect of the conflict on the children who were sitting exams. Reports were made to school counsellors who provided evidence of their significant concerns and negative impact on the children;
  • There was hardship to the wife in terms of finding alternative accommodation in circumstances where she operated a home business seeing 8 clients per week. She also worked at schools in the area;
  • The husband’s financial circumstances indicated that he would be able to find alternative accommodation. The Court acknowledged that he would experience hardship but he had stable employment and liquid funds (savings of approximately $45,000 with weekly credit card expenses of $700 but only approximately $1,600 was owing on 2 credit cards);
  • There was no realistic prospect of the children living with the husband at the matrimonial home (i.e. 3 moves or 1 move); and
  • The ill effects the children were experiencing from the violence/conflict (of which the Court placed significant weight).

Ultimately, each case must be determined on its facts.

Absolute care must be taken in bringing these applications to ensure that adequate evidence is available before the Court for an order for sole occupancy to be made.

Merritt & Phillips [2017] FamCA 618

In this case, the wife advanced that:

  • The children were subjected to family violence and abuse perpetrated by the husband, which resulted in the wife having to leave the matrimonial home with the children and stay in alternative accommodation;
  • Being able to return to reside in the matrimonial home would reduce the wife’s weekly commitments in caring for the children. For example, the matrimonial home was within walking distance of the school of one of her children; and
  • The husband had alternative accommodation available to him.

Conversely, the father advanced that:

  • The allegations of family violence were untrue; and
  • He needed to remain in the home as a result of his deteriorated physical health and condition;

In that case, the wife sought orders on an interim basis (that is, until final orders are made in the matter) that an interim property injunction is made and the wife be allowed the sole use and occupation of the matrimonial home.

It should also be noted that the parties had entered into prior consent orders that the children remain in the primary care of the mother, and “on the basis of protective considerations relating to the children and concerns in relation to the father’s drug and alcohol abuse orders have previously been made by consent, that the father have only supervised time with the children.”

In deciding whether to grant the wife’s order sought for sole occupancy of the matrimonial home, the Court noted that:

  • The young children had “in all probability” identified the matrimonial home as “their home”;
  • The financial evidence supported the conclusion that the wife would be able to meet the obligations in relation to the mortgage and outgoings if she were to occupy the matrimonial home with the children (until a final order is made); and
  • The husband’s conduct towards the mother and children was questionable in the context of him likely to have alternate accommodation.

The Court made orders for:

  1. The Husband to vacate the former matrimonial home;
  2. The Wife to have sole use and occupancy of the former matrimonial home to the exclusion of the husband provided she pay the mortgage and outgoings;
  3. The Husband is restrained from removing any items from the property but for his personal effects; and
  4. The husband is restrained from entering the matrimonial home without the consent of the wife in writing.

If you have any questions about your family law issue, please contact our office for a free initial consultation with one of our family lawyers.

He doesn’t hit me. Is it really domestic and family violence?

Domestic and family violence comes in many forms and is not limited to physical violence. It can occur in many different types of settings and can be experienced directly or indirectly. In Queensland, the Domestic and Family Violence Protection Act 2012 contains a broad definition of Domestic Violence. It includes behaviour that:

  • physically or sexually abusive; or
  • emotionally or psychologically abusive; or
  • economically abusive; or
  • threatening; or
  • coercive, which means they compel or force the other person to do, or not do, something; or
  • in any other way controls or dominates the other person, causing them to fear for their own safety or wellbeing, or the safety and wellbeing of someone else.

For example, the following behaviours are examples of domestic violence:

  • damaging the other person’s property or threatening to do so;
  • depriving the other person of their liberty or threatening to do so;
  • threatening the other person with death/injury, or death/injury of their child or someone else;
  • threatening to commit suicide or self-harm so as to torment, intimidate or frighten the other person;
  • threatening to or actually causing the death of, or injury to, an animal, whether or not the animal belongs to the person to whom the behaviour is directed, so as to control, dominate or coerce the person;
  • unauthorised surveillance of the other person, which means the unreasonable monitoring or tracking of their movements, activities or interpersonal associations without their consent, including, for example, by using technology. Example:
  • reading a person’s SMS messages
  • monitoring a person’s email account or internet browser history
  • monitoring a person’s account with a social networking internet site
  • using a GPS device to track a person’s movements
  • checking the recorded history in a person’s GPS device
  • unlawfully stalking the other person.
  • causing personal injury to the other person or threatening to do so;
  • coercing the other person to engage in sexual activity or attempting to do so;
  • getting another person (outside of the relationship) to engage in any of the above behaviour.

For more examples about what constitutes domestic violence, have a look at the following links:

Are DVO’s just for people who are married, or in a de facto relationship?

No. There just needs to be a “relevant relationship” – the person suffering the violence has to be in a “relevant relationship” with the person perpetrating the violence. The relevant relationships are:

    1. A family relationship. For example, brother and sister, son and father-in-law, child and parent, aunt and nephew, step-parent and step-child, etc.
    2. An informal care relationship. For example, paid or volunteer carers who come into the home to provide care services.
    3. A spousal relationship including de facto relationships.
    4. An engagement relationship. For example, a couple who is engaged to be married but not living together.
    5. A couple relationship. For example, a couple who is dating, but do not live together and are not married.
    6. A former spouse or former de facto partner

How can I stop the violence?

If you are a person in a relevant relationship like one named above and you have or are at risk of suffering domestic violence or your children have, or are at risk of suffering, have been exposed to or at risk of being exposed to domestic violence, you may be able to make an application for a Domestic Violence Protection Order. The Court may make Temporary Orders or Final longer-term Orders.

Domestic Violence Protection Orders are issued by the Magistrates Court. There are a few ways that you may seek an order. You may make the application yourself, you may contact the police and they may make the application for you or you may have your lawyer make the application on your behalf. If the Protection Order is not urgent it is a good idea to seek legal advice before making the application to ensure that you have taken appropriate and necessary steps to protect yourself and your children and to ensure that you are accessing the right process.

The Court may make a Protection Order if:

  • relevant relationshipexists (eg. intimate personal relationship, family relationship or an informal care relationship);
  • the Respondent has committed domestic violence against the Aggrieved; and
  • the Protection Order is necessary or desirable to protect the Aggrieved from domestic violence.

The third element is not required for a Court to make a Temporary Protection Order because the purpose of a Temporary Protection Order is to protect those in immediate danger until the Court can decide the application for a Protection Order. As such, it has a shorter duration than a Protection Order. The usual duration of a Protection Order is five years. However, the Court can shorten or lengthen this duration if it sees fit.

The general application process for final Orders requires that the respondent be notified of your application before the Order is made and given the opportunity to respond. There will then be a court date that you attend and the Court will decide your application.

What are the conditions of a Protection Order?

Every Protection Order has the standard condition that the Respondent be of good behaviour and not commit domestic violence against the Aggrieved or any other person named in the Order. If a child is named in the Order, the Respondent must be of good behaviour towards the child, not commit domestic violence towards the child, and not expose the child to domestic violence.

Protection Orders can have other conditions , including prohibiting the Respondent from:

  • remaining at, entering or attempting to enter or approaching the Aggrieved at home or work;
  • contacting the Aggrieved or asking someone else to contact the Aggrieved;
  • being present at or in a place associated with a child, including school or day care centre; and
  • trying to locate the Aggrieved or asking someone else to locate the Aggrieved.

Once in place, the parties to a proceedings get a copy of any Orders and the Court must ensure that the parties understand the Protection Order.

What happens if a respondent does not comply with a Protection Order?

It is a criminal offence to disobey any of the conditions of a Protection Order. The Aggrieved should be advised to contact the police immediately if the Respondent breaches the DVO. A police officer can charge the Respondent with an offence.

I’ve been named as the Respondent in an Application for a Protection Order. What do I do?

Domestic Violence Applications are treated very seriously by the Courts in Australia. Once an Order is in place (temporary or final), the terms set down in it must be followed. As explained above, the terms of the Order ordinarily places limits on the respondent’s behaviour. If the terms of the Order are not followed, this will result in breach of the Order and the police can charge the respondent with a criminal offence. A criminal offence carries severe penalties, which can include a term of imprisonment. The behaviours set out in the terms of the Order are not ordinarily considered to be criminal behaviour, however, because they are contained within the Order issued by a Court, a breach of those terms may result in criminal sanctions.

There are circumstances where simply agreeing and consenting the Order may be the best approach, even if you disagree with the allegations contained within the Order. This is called “consenting without admission”. Even if you agree with the Order however, it is a good idea to seek legal advice about the terms of the Order. It is important that you are represented and adequately provided the opportunity for input about the terms that are included in the Order.

However, there are also circumstances when you should disagree with the Order being made. You may be pressured to concede, but if you disagree with the Order, you will have to go to the Magistrate Court and contest the Order. The Court will then set down a hearing date (which can sometimes be months later) but you will need time to prepare your case. You can then make important choices about what evidence and documents, such as photographs and doctors’ reports, you are going to put before the Court and who you should subpoena as witnesses (if any) in order to support your story. It may also be necessary to put your side of the story into an affidavit (which is a sworn statement).

Ultimately, the Court will decide on whether or not to make an Order and on what terms once it has heard all the evidence. It is strongly recommended you seek legal advice before opposing an Order.

How does a Protection Order work with a Family Law Order?

Orders about parenting arrangements after separation are made in the Federal Circuit Court or the Family Court of Australia pursuant to the Family Law Act 1975 (Cth) (“FLA”). Protection Orders are made in state-based Magistrates Courts pursuant to the Domestic and Family Violence Protection Act 2012 (Qld) (“DVFPO”).

Both pieces of legislation recognize the interrelationship of parenting issues and Protection Orders, and by law, people must inform a Court if there is an existing or pending Protection Order  involving themselves or their children.

A parenting order that is made under the FLA will override any inconsistent conditions in a Protection Order. This is because federal law overrides state law. The FLA allows state courts to amend, discharge or suspend parenting orders to remove an inconsistency with the proposed DVO. For example, where the parenting order allows contact between the respondent named on the DVO and a child that is restricted under the DVO. The Court however, must be satisfied that it is appropriate to amend, discharge or suspend the parenting order because a person has been, or is likely to be, exposed to domestic violence as a result of the parenting order.

The DFVPA makes it clear that the Court must not diminish the protection given by the Protection Order  to facilitate the parenting order. The purpose of this is to ensure that an Aggrieved and their children are protected from domestic violence.

Am I allowed to talk about the violence I experienced?

Naming people involved in domestic violence has become an increasing trend as social awareness increases around the seriousness of domestic violence and its impact on victims, their families and the wider community.

This trend has been fueled by social media and the speed at which information can be communicated and published to wide cross sections of the community with a click of a button.

However, before you take it upon yourself to hold someone accountable for wrongs you believe have been committed, consider this:

Section 159 makes it a criminal offence to publish;

  • Information given in evidence in a proceeding under the Act in a Court; or
  • Information that identifies, or is likely to lead to the identification of a person as-

i) A party to a proceeding under the Act; or

ii) Witness in a proceeding under the Act.

This means, despite any feelings you may have to the contrary, you are prohibited by law from sending, communicating, posting or causing material to be sent, communicated or posted to any other person that relates to domestic violence proceedings. This section specifically relates to material that contains evidence used in Court or that identifies any of the parties to the proceedings (including the Respondent).

The following are examples of the types of conduct that are prohibited by the Act. You may not communicate material that is likely to identify a party to the proceedings or that contains evidence used in the proceedings by;

    1. Written or electronic mail, notes, correspondence, notices or other written communication;
    2. Visual representations including posters or signage;
    3. Verbally communicate the information to another personally;
    4. Audio/visual recordings or broadcasts, including, but not limited to podcasts, vlogs, radio, youtube, audio message, or television;
    5. Social media message, post, broadcast, update or image.

Domestic Violence Protection Order is not a criminal conviction against the alleged perpetrator it is a Civil Order. However, Under the Act, the conduct mentioned above is a criminal offence and is punishable by a maximum of 100 penalty units or 2 years imprisonment.

If you or anyone you know is experiencing domestic violence, please contact a support service or make an appointment to see one of our family lawyers.