For many people experiencing separation or family violence, one of the first questions they ask is, “Who has to leave the family home?”
It’s an understandable concern. Whether you own the property, are named on the lease, or have lived there for years, the notion of being asked to leave can feel overwhelming or sometimes staying with the other party may not be safe, practical or reasonable. If an agreement cannot be reached, then a party can choose to apply for exclusive occupation of the home to the Federal Circuit and Family Court.
The Court has the power to make an exclusive occupation order which is designed to protect the safety of those experiencing family violence or for the welfare of children and can be made even where the person required to leave is the registered owner of the property.
What is an exclusive occupation order?
An exclusive occupation order gives one person the legal right to occupy the family home to the exclusion of another. In practical terms, this means the protected person can continue living in the property, while the other person may be prohibited from entering or remaining there.
For married couples, the court’s power is found in section 114(1)(f) of the Family Law Act 1975 (Cth) (‘FLA’) and for de facto couples the power is found in section 114(2A)(a) of the FLA but must first establish jurisdiction.[1]
Given the significant implications of an exclusive occupation order, these applications assessed at the discretion of the court are often undertaken only in cases of real necessity.[2]
In Victoria, exclusive occupation in the form of a restraint on one party approaching within 200m of the home, for example, can be included as a condition of a Family Violence Intervention Order (FVIO) in the Magistrate’s Court where the court considers it necessary to ensure the safety of the affected family member. Where there is family violence, an Intervention Order may be the most appropriate avenue for legal protection.
When might the court make an exclusive occupation order?
The Federal Circuit and Family Court will first consider the specific circumstances of each case on its facts and decide whether an exclusive occupation order is appropriate before considering which party reserves the right to exclusive occupation.[3] Its primary concern is the protection of parties who are experiencing family violence, preventing further harm and the wellbeing of any children.
While the Court does not need to find that living together is impossible, the court must be readily satisfied that expecting both parties to co-occupy the property is neither reasonable, sensible, nor practicable.[4]
Relevant factors may include the nature and seriousness of the alleged family violence, the ongoing risk to the affected family member, the presence and needs of any children and whether requiring one person to leave the home is necessary to ensure everyone’s safety.[5]
The court may also consider practical matters such as whether suitable alternative accommodation is available and the impact the order may have on both parties. These decisions are highly fact-specific and consider a balance of hardshipon all parties involved. An exclusive occupation order is not made automatically simply because an intervention order has been sought.
Does it matter whose name is on the property?
This is often one of the biggest misconceptions.
Many people believe they cannot be required to leave a home if they own it or are named on the lease. However, an exclusive occupation order can require a person to leave the property even if they are the registered owner, co-owner or tenant.
Importantly, this does not affect ownership rights. An exclusive occupation order only determines who may occupy the property while the order remains in force. Questions about ownership, the division of assets or the future sale of the home are dealt with separately through family law or property proceedings. Financial Circumstances of each party are also examined by the Court in an exclusive occupation application.
Are exclusive occupation orders permanent?
In most cases, no.
Exclusive occupation orders are generally temporary and remain in effect for the period specified by the court or while the intervention order is in force. Depending on the circumstances, the order may later be varied, extended or revoked.
As family violence matters often coincide with separation, exclusive occupation can provide a practical solution while longer-term issues such as parenting arrangements, property settlement or future living arrangements are being resolved.
Getting the right advice early
Whether you are seeking protection from family violence or have been asked to leave your home following an intervention order, understanding your legal position is important.
These situations are often emotionally challenging and can have significant consequences for your living arrangements, children and your future. Obtaining legal advice early can help you understand your rights, explain the options available to you and help you understand next steps.
At Nicholes Family Lawyers, we understand that no two families are the same. We have expertise advising clients across a wide range of family law matters, including complex parenting proceedings. Should you require any advice about your situation, please contact our office on (03) 9670 4122 to arrange an initial consultation.
[1] Norton v Locke [2013] FamCAFC 202 at [42]
[2] G v J (Ouster Order) [1993] 1 FLR 1008 citing Burke v Burke [1987] 2 FLR 71 at 73.
[3] Dickinson & Packam [2021] FamCA 298 at [25].
[4] Davis [1982] FamCA 72 citing Price at paragraph 10.
[5] Jyotisha & Jyotisha [2016] FamCA 738 at [15], Hogan J