Family Law Sole Occupancy Order – “I just want him to leave…”

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This article discusses a Family Law Injunction, in particular a Sole Occupancy Order.

Pursuant to the Family Law Act 1975, 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.

The recent decision of Saveree & Elenton [2014] FamCA 38 (31 January 2014) is a good example of the sort of evidence that satisfied the Court with respect to an order for sole occupancy being “proper.”

In this case:

1)     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;

2)     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;

3)     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;

4)     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);

5)     There was no realistic prospect of the children living with the husband at the matrimonial home (i.e. 3 moves or 1 move); and

6)     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.

Are you considering a Sole Occupancy Order for your family law matter? Contact us

If you need a sole occupancy order and/or you would like some legal advice regarding this, please contact one of our Business Development Officers on (07) 3252 0011 to arrange an initial appointment today with one of our Brisbane Family Lawyers.