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.