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Who stays? Sole Use and Occupation Order

When people separate, one party often agrees to leave the family home however, this is not always the case. In some circumstances an issue can arise as to who will remain in the family home pending a final resolution of property matters.

One option available to parties in this situation is to apply for a sole use and occupation Order through the Family Court of Australia or Federal Circuit Court pursuant to section 114 or s68B of the Family Law Act 1975.

The onus of proof is on the party making an Application to demonstrate to the Court that such an Order is necessary as it would not be reasonable for both parties to remain living together in the family home.

In making a decision the Court will consider the following factors:

  1. The means and needs of the parties including any hardship they may suffer;
  2. The level of conflict between the parties;
  3. The conduct of each of the parties; and
  4. The needs of any children to the relationship.

These factors are not an exhaustive list and the Court also has the discretion to consider all other circumstances of the party’s situation.

The person seeking an Order for sole use and occupation must satisfy the Court on the balance of probabilities that there are sufficient circumstances that justify the Court making such an Order.

In the case of Saveree & Elenton [2014] there were allegations of family violence by the husband against the wife and the wife produced evidence that the conflict had a detrimental effect on the children, who were sitting exams at the time.

The wife also produced evidence that she would suffer significant hardship in regards to finding alternative accommodation in circumstances where she operated a business out of the family home. The husband’s financial circumstances in comparison indicated that he would be able to find alternative accommodation.

The Court acknowledged that the husband would experience hardship by vacating the former matrimonial home but that he had stable employment and sufficient funds to afford moving home being savings of approximately $45,000. There was also no realistic prospect of the children living with the husband at the matrimonial home without the wife.

The Court therefore made an Order in favour of the wife and the husband was required to vacate the former matrimonial home.

Nicholes Family Lawyers has had extensive experience in making sole use and occupation Applications in the context of Family Law proceedings. If you are considering making such an Application to the Court and wish to obtain legal advice, please contact the Team at Nicholes Family Lawyers.


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