Exclusive occupation of former family home

In the recent decision of Perdicari & Perdicari [2019] FamCAFC, the husband sought leave to appeal orders made by the Federal Circuit Court of Australia which provided that the wife was to have exclusive occupation of the former family home.

Brief Background

The husband and wife married in 2004 and had three children. They separated in May 2017. The wife moved out with the children and the husband remained living in the former family home.

The parties entered into consent orders in May 2018 which provided that:

  • the former family home be sold
  • the husband be solely responsible for paying the mortgage, rates, utilities and other outgoings pending the sale of the home
  • the husband maintain the property in a clean and presentable condition
  • each party receive $50,000 once the home is sold

The family home was listed for sale in August 2018. However, it was extensively damaged by fire in November 2018. The wife filed an application seeking that the husband vacate the family home and she have sole occupation.

It was common ground that the parties could not live together in the family home. The issue for the trial judge was whether the husband or the wife should be allowed to live in the family home: [16].

Decision of the Trial Judge

The trial judge focused on where the balance of convenience lay and the balance of hardship: s 114(1)(b) Family Law Act 1975 (Cth); In the Marriage of Sieling (1979) 24 ALR 357. The trial judge decided that the balance of convenience lay with the wife and made orders that the wife have exclusive occupation of the former family home: [21]. In reaching that decision, the trial judge considered a number of factors, including:

  • The children’s living arrangements would be more stable if they were to live with the wife in the former family home.
  • The wife would meet the outgoings for the property. There was evidence to suggest that the husband made no mortgage payments and that the council rates were in arrears while he had been living at the former family home.
  • The husband was unemployed but could live with his parents.

Grounds of Appeal

The husband appealed on five grounds. These grounds could be summarised by two:

  1. The trial judge failed to consider matters which the husband regarded as important. The husband argued that the trial judge failure to consider his parents’ health and the condition of the house following the fire.
  2. The decision of the trial judge was plainly unreasonable and unjust.

The husband filed a 140 page affidavit and had not served it on the wife at the commencement of the hearing. The wife argued that it would be procedurally unfair to allow the husband to rely on the affidavit. The only part of the affidavit that was allowed into evidence was a medical report concerning the husband’s father. The medical report indicated that the husband could not live with his parents because of his father’s health.

Decision of the Appeal Judge

The appeal judge found that error on these two grounds of appeal could not be established. However, Her Honour said in relation to the medical report:

“The further evidence of the [husband], which is not seriously controversial, demonstrates that, although involving no error at the time it was made, to proceed on the basis that the [husband] could reside with his parents can now be seen as erroneous. Based on that further evidence, the appellant has established that the orders of the primary judge are attended by sufficient doubt as to warrant them being reconsidered by this Court and further, that the [husband] being in effect, rendered homeless, would occasion substantial injustice if leave to appeal was refused”: [47].

The appeal was allowed on this point. Her Honour re-exercised discretion in favour of the wife and ordered that the wife have exclusive occupation of the former family home and that the husband be paid $50,000 to allow him to resettle. Her Honour noted:

  • the children live with the wife
  • the family home would provide greater and appropriate privacy for the wife and the children
  • the family home is larger than is needed for a person who lives alone
  • the husband had sole occupation of the family home for some time and his continuing to do so would be unreasonable to the rest of the family
  • the wife had the capacity to pay mortgage instalments, rates and necessary expenses for the property
  • the family home was the parties’ most valuable asset and the husband was unlikely to be able to maintain it financially
  • the provision of $50,000 to the husband would be sufficient to allow him to resettle elsewhere

Author Eustacia Yates & Brooke Nickerson 

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