Sole use and occupation of the family home
When parties to a marriage or de facto relationship separate, it is not uncommon for them to continue to live separately under the one roof, while they finalise their property settlement and/or parenting arrangements. Although there can be economic benefits to such living arrangements, they are often fraught with tension and conflict.
Failing one party voluntarily leaving the family home, an application to the Family Court of Western Australia, for sole use and occupation of the family home, may be needed.
The Family Court’s power to make orders for the sole use and occupation of a family home is made by way of an injunction.
The Full Court of the Family Court of Australia has held that when deciding whether to give a spouse sole use or occupation of the family home, the Court may make such order as it thinks proper and matters which should be considered include:
- The means and needs of the parties;
- The needs of the children;
- Hardship to either party or to the children; and
- Where relevant, conduct of one party which may justify the other party in leaving the home or in asking for the expulsion from the home of the first party.1
- The considerations concerning the Family Court’s exercise of discretion for the making of a sole use and occupation order are neither fixed nor exhaustive. Ultimately each case must be decided on its own merits, in light of its own particular set of facts and circumstances.2
It is a very serious matter to remove a party from their home and is not an issue which is treated lightly; however, where the circumstances justify it, such orders can be made by the Family Court.
If you are considering seeking orders for sole use and occupation of your family home, or an application has been made to remove you from the family home, our Family Law team are able to provide you with advice and assist you in making or defending such an application.
Concerningly, self-isolation and social distancing restrictions may also see a rise in incidences of family violence in the family home.
Below are relevant contacts and helplines for victims of family violence:
- If you are in immediate danger call 000.
- if you or your children are at risk call the Police on 131 444.
- Crisis Care Unit - 9223 1111 or 1800 199 008.
- Beyond Blue COVID-19 Mental Health Support Service (ph. 1300 22 4636) - dedicated COVID-19 Mental Health Support Service.
- 1800RESPECT (ph. 1800 737 732) - 24 hours support for people impacted by sexual assault, domestic or family violence and abuse.
- Kids Helpline (ph. 1800 551 800) - confidential telephone and online counselling services to young people aged 5–25 years.
- Lifeline (ph. 13 11 14) – 24-hour crisis telephone counselling, information and referral service.
Disclaimer – the information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.
Davis and Davis (1976) FLC 90-06, 309.
Fedele and Fedele (1986) FLC 91-744.