Can I get a sole occupancy Order for the marriage home?

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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.

The recent family law decision of Merritt & Phillips [2017] FamCA 618 dealt with this consideration.

In that 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:

  • The Husband to vacate the former matrimonial home;
  • 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;
  • The Husband is restrained from removing any items from the property but for his personal effects; and
  • The husband is restrained from entering the matrimonial home without the consent of the wife in writing.

Contact our family law specialists

We’re here to help guide you through your Family Law legal matters after separation. Please call our Brisbane Family Lawyers  on 07 3252 0011 to discuss how we can help you.

Written by James Tan (Associate)