Should I stay or should they go? The battle for sole occupation of the family home

Simone Green, Family Lawyer and Accredited Specialist regularly assists her clients in dealing with this common and often hotly contested issue of who should move out of the jointly owned home. This is especially emotive when children are involved, finances are tight and may not stretch comfortably, or even at all, across two households for the payment of rent and/or a mortgage. After all, few adults want to move back in with parents or ‘couch surf’ at the mercy of friends. So, what does the law say?

Section 114 (1)(f) of the Family Law Act 1975 (Cth) (‘the Act’) provides the family courts with the power to make injunctive orders regarding the use or occupancy of the family home. The Act is silent however on the factors to be considered in making such an order; this falls to precedents (judge made law derived from cases) establishing legal principles.

The legal principles regarding exclusive or sole occupation derive from the 1978 Full Court case In the Marriage of Gillie which are:

• The relative needs and financial means of the parties;
• The needs of the children (if any)
• The 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 other party.

The above factors are guidelines only and are not a set of mandatory requirements. The onus of proving entitlement to sole occupation falls to the person making the Application and each case is heard according to its own unique facts.

An Application for sole or exclusive occupation of property is what is known as an “interim” or “interlocutory” application; meaning before a final hearing deciding essentially who gets what.

The Court does not lightly, remove a co-owner from their own property without good cause. The onus of proving entitlement to sole occupation of property, falls to the person making the Application to Court.

The conduct of the party being asked to leave the home may be significant in a successful application for sole occupation, especially when there are children who may be negatively impacted by ongoing conflict between the parents if they both remain in the home especially where there is family violence. The conduct must be serious however, not merely annoying or inconvenient.

The Family Court recently heard a case of Belcher & Gardner [2019] FamCA205 on the issue of an Application by the husband for exclusive use of a beach house owned by the couple, not permanently occupied by either of the parties, in circumstances where the wife was living separately in the marital home and the husband was renting a one-bedroom apartment. The two youngest of the parties’ children lived with the wife, and the two adult children were living away although occasionally holidayed at the beach house. On the face of it, it seemed to make practical sense that the husband should be allowed to live in it; but the Court ruled otherwise.

Unlike many Applications for sole occupation heard by the family courts, the husband in the Belcher & Gardner case had sufficient funds to fund his rent in alternate accommodation. The asset pool was reported to be in the vicinity of $20 million. Likewise, the wife had adequate means to support herself and the children, so financial need was not an issue of relevance.

Similarly, the parties in Belcher & Gardner did not comfortably fit the other legal principles outlined in Marriage of Gillie – the children were not to be displaced or to suffer any ‘hardship’ in the usual sense of the word, as a result of the husband’s Application. The children in that case were ‘estranged’ from the husband however and did occasionally use the beach house. That was enough in this case to sink the husband’s Application. At [29] the Honourable Justice Wilson stated:

It could not be said that the children’s financial needs are affected by the husband’s sole use and occupation of the C Town property. However, it is readily apparent that the presence of the husband at the C Town property when the children are also present will be deleterious to the children’s emotional fabric. To the extent that their needs include their sense of tranquillity and contentment, that will be turned on its head by the presence of the husband at the beach house when the children are also present. To make an order in favour of the husband for sole use and occupation of the C Town property will procure the result that the children will not use that property and, if they do, conflict will inevitably arise. That does not advance their needs.

The Belcher & Gardner case demonstrates that sole occupation orders are not always foregone conclusions and warrant serious consideration before embarking on an Application. If you think an order for sole occupation of property may be appropriate for you, contact our family law experts at Streeterlaw on 02 8197 0105 and speak to us today.