When parties separate, it is often necessary to discuss housing arrangements. This is particularly important for the party who will have the ongoing care of the children.

If you are unable to reach agreement with your spouse or partner and you feel you should have sole use and occupancy of the family home, you should seek legal advice to determine whether you have grounds to commence Family Court proceedings for court orders that you be granted the exclusive right to live in the family home. This applies to parties in a marriage or de facto relationship.

The Family Court may make orders that a party has exclusive occupancy notwithstanding that the other party may be the sole owner of the family home.

Inconvenience to the parties concerned is not sufficient to justify a sole occupancy order and the Family Court will not proceed to grant an order based on vague or uncertain claims.

The Family Court’s Approach

Under the Family Law Act, in considering whether to grant one party sole occupancy of the family home, the Family Court may make such order as it thinks “proper”. In decided cases, the Family Court has held that in determining whether it is proper to make a sole occupancy order, the following matters are to be taken into account:-

  • The means and needs of the parties.
  • The needs of the children.
  • The hardship to either party or to the children.
  • Where relevant, conduct which justifies one party being expelled from the family home.

This is not an exhaustive list and the Family Court has held that it must examine the entire circumstances of the parties concerned and determine whether such an order is justified.

The Family Court has held that in considering whether it is proper to grant a sole occupancy order, the Family Court must determine whether or not it is reasonable or sensible or practical to expect the parties to remain in the home together.

Contact Robertson Hayles Lawyers for Advice and Court Representation

If you are seeking sole occupation of your family home, our family law solicitors are able to provide you with advice and assist you in making an application to the Family Court for the relevant court orders.

Our family law solicitors are also experienced in defending applications for exclusive occupation and can advise you on the grounds of defending such an application in your specific situation including representing you at any hearing in the Family Court.

If you wish to apply for exclusive occupation of the family home or wish to defend against any such application, please contact Robertson Hayles Lawyers on (08) 9325 1700 or by email at reception@robertsonhayles.com to arrange for an appointment with an experienced family lawyer.