This issue often arises during separation. Who will remain in the former matrimonial home and who needs to move out. Some people can agree about who stays and who goes, while remain separated under one roof. But in many cases there is no agreement and separation under one roof is not possible, in such cases seeking an order for sole occupancy is often the best solution. The Federal Circuit and Family Court has powers under the Family Law Act 1975 (Cth) to order that one party has sole use and occupation of the former matrimonial home. However, sole occupancy is not always easy to obtain. Orders giving exclusive use or occupation of a matrimonial home are made by the Court with some caution as it is a serious matter to order a person out of their home.
In a marriage, the Court may as it considers proper grant an injunction relating to the use or occupancy of the matrimonial home under s 114 of the Act, while s 114(2A) applies in a de facto situation. Conflict that is having an adverse effect upon a party and/or the children will often be enough to tip the balance in favour of granting an order for sole and exclusive use and occupation of the home. As always, there is a real evidentiary burden that the applicant for an injunction must satisfy. In Davis  FamCA 73, the Court held that an order will be granted if the situation between the parties is such that it would not be reasonable, sensible or practicable to expect them to continue to remain in the house together. From Kale & Kamel  FamCA 851, we know that often the balance of convenience will decide the case.
The criteria for the exercise of the power under s 114 are simply that the court may make such order as it thinks proper. While each case will be considered on its own merits in the circumstances, the matters which the Court will consider include:
- whether the application is reasonable or unnecessary;
- the interests of any children;
- the relationship between the parties;
- the financial position of each party;
- whether it is practical and financially possible for either party to obtain alternate accommodation;
- any issues of family violence;
- alternate options available to the parties, for example, temporarily moving in with parents or moving into an investment property;
- convenience or hardship to either party of moving out; and,
- any other matter that the Court considers relevant.
If you have fears for the safety or security of yourself or your child, then an apprehended violence order (AVO) in New South Wales, or a family violence intervention order (FVIO) in Victoria, should be applied for under the relevant State legislation. A condition of the order may also remove your family member from your home. This is called an exclusion order. If an exclusion order is not granted via this process, the existence (or otherwise) of a family violence intervention order will form part of the evidentiary fact matrix of an interim application for an injunction for sole occupancy under s 114.
If you need assistance with an application for exclusive sole occupancy of the matrimonial home, you can contact Jano Family Law by completing the New Client Form.