Separating from a partner can be one of the most challenging experiences in life, and it often comes with a maze of legal, practical, and emotional complexities. Whilst many separating couples reach agreement about who is to remain in the family home, a failure to reach an agreement can lead to increased conflict and stress in an already challenging situation. If you are navigating the tricky issue as to who occupies the home after separation, understanding your rights and responsibilities is crucial.
Can the Court order a party to vacate the property?
The Federal Circuit and Family Court of Australia has power under section 114(1) (114 (2a) for de facto couples) of Family Law Act to make orders requiring a party vacate a shared property within a specified period.
When considering an application for sole occupancy, the Court will act cautiously given the seriousness of excluding a person from their own home. The Court will consider the circumstances of the parties with the onus to establish a case for exclusion resting upon the party seeking the exclusion order.
What will the Court consider?
In Davis & Davis (1976) the Full Court provided guidance regarding the matters a Court should consider:
- The means of the parties – For example, the availability of alternative accommodation, the financial resources and income of the respective parties.
- Needs of any children affected – Where children may be impacted by any order for sole occupation, consideration should be given to the primary carer of the children remaining in the former matrimonial home.
- Hardship to either party (or children) – The Court will have regard to the circumstances of the respective parties and consider their positions and the alternatives confronting them should the Court make an order for the other party to have sole occupation of the former matrimonial home.
- Conduct of the parties – The conduct or misconduct of one party may justify the Court making an order expelling a party from the matrimonial home.
However, in Fedele & Fedele (1986) the Full Court noted that decisions establishing guidelines should be treated as such and are not a fixed list of criteria that must be established for a sole occupancy application to be successful. Therefore, it is important to seek legal advice about the factual circumstances particular to your circumstances.
Apprehended Domestic Violence Order
In circumstances where family violence is present and a party is subject to an apprehended domestic violence order (ADVO), particular consideration should be given to the conditions contained within the order. An ADVO may operate to exclude a party from the residence. However, if an ADVO applies, but does not contain a condition that would operate to exclude a party from the residence, the order will still be a relevant consideration for the Court when determining a sole occupancy application.
In most instances, it is important to speak to a family lawyer first. We have experienced solicitors in Newcastle and the Central Coast area that can help you through your family law matter.
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