Exclusive Occupation and Perth Family Law

One can potentially seek exclusive occupation of the former family home by filing an application in the Family Court of Western Australia.

If the other party does not provide a positive response to mediation, pre-action procedure correspondences an order from the Family Court of Western Australia can be obtained for the other party to vacate the matrimonial home and that you enjoy exclusive occupation in certain circumstances.

A party may or may not be successful given the current state of family law regarding exclusive occupation.

The Family Court of Western Australia can make an order for one party to have sole use and occupancy of the family home requiring the other party to vacate the property within a specified time. As it is a very serious matter to order one party to vacate, the Court will likely grant orders with caution.

Sections of the Family Law Act that may be the most relevant are section 114 or section 68B.

There are various matters that the Court considers when determining whether to give a spouse exclusive occupancy:

  • Can the occupants be adequately housed elsewhere and if so please instruct as to those potential and alternative arrangements?
  • Could either party afford those alternative living arrangements with funds available from their resources?
  • Does it make less sense for the occupants of the marriage home to live away from the matrimonial home or for you to live away from the marriage home?
  • Children under the age of 18 who are occupants are in what way their interests are served and what is in their best interests?
  • What if any financial contributions were made by each of you to the property?

Other considerations may include:

  • The potential injustice of forcing someone out of their home or otherwise accepting inferior accommodation without just cause.
  • The level of violence or apprehension of violence.
  • The availability of alternate accommodation for the other occupants and the ability to fund accommodation.
  • What options are available for the other occupants to vacate the matrimonial home considering finances and alternate accommodation.
  • The cost of funding two households, the timing of this, and who takes what items from the marital home.

In summary, there is a range of factors the Court can consider when deciding to grant a spouse exclusive occupancy. The court will likely consider whether there is any actual and/or threatened violence, physical or mental harm, intimidation or harassment including but not limited to circumstances where one party is engaging in improper behaviour such as intimidation or manipulation to prevent their spouses from pursuing their rights.  The court will likely consider the availability of alternative accommodation including whether funds are available to enable that housing to be provided.

There is a well-established principle in law that the power to grant injunctions such as exclusive occupation orders is not to be exercised lightly.

As Wood SJ said in Rowe and Rowe (1980) FLC ¶90-895, at p 75,643: “It has frequently been said that injunctive orders, the effect of which are to deprive a spouse of proprietary rights or seriously interfere with them, are ordered to be made with caution”.  This law has been endorsed in the attached cases.

Other cases such as McCarney and McCarney (1977) FLC ¶90-200, at p 76,058 note It is a serious thing to eject a person from his home: “It is a very serious matter to turn a man out of his home. It is not done lightly.” Per Murray J in O’Dea and O’Dea (1980) FLC ¶90-896, at p 75,648.

It is a serious thing to exclude a spouse from the home: “ … the granting of an injunction to enforce the removal from or the barring of entry to the matrimonial home is a grave and drastic Order and it should not be made unless it is impossible for the parties to live in the same house, there being on foot an imperative or inescapable or otherwise intolerable situation.” Per Butler J in Lee and Lee (1977) FLC ¶90-314, at p 76,676.

Please note this is not family law advice. It is important to seek advice specific to your circumstances. We are a small, boutique family law firm that has been established for over 20 years. You will receive personalised attention from our Legal Practitioner Director supported by very experienced Perth family law paralegal and support staff.

Prior to your first appointment, you may send us an email or similar, outlining your situation as you would want to tell us in your first appointment. This information will be read on a complimentary basis prior to your first family law appointment. We get to know you and your family law matter before we meet.

Email our experienced family law support staff at info@bodekers.com.au, for your complimentary pre-read and reduced rate first appointment with our Legal Practitioner Director who has more than 20 years of experience in family law.

Information that you may want to provide at no cost prior to your first meeting with Bodekers Family Lawyers & Mediators includes the name, age, occupation and date of birth of the other party’s child and family members who live at the property. Alternatives as to what arrangements can be made for their accommodation can be provided.

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