Sole or Exclusive Occupation of The Former Matrimonial Home

In Saveree & Elenton [2014] FamCA 38 (31 January 2014) Stevenson J considered an application for sole or exclusive occupation of the former matrimonial home.

“The criteria for the exercise of the power under sec. 114(1) of the Family Law Act 1975 (Cth) [Injunctions] are simply that the court may make such order as it thinks proper. The matters which should be considered include:

• the means and needs of the parties;
• the needs of the children;
• 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 first party.” 1

• Those considerations are not exhaustive;
• They are not a fixed list of criteria which must be established for the application to be successful.
• Each case must be determined ultimately on its own facts.
• A judge is required to exercise his own discretion in the matter. 2

Held

• “The needs of the children weigh heavily in the determination of these proceedings.”
• “The children will be disadvantaged if they live again with both parents under one roof.”
• “In the present circumstances, there is no realistic prospect at all that the children would live with the husband.”
• “Accordingly, it falls to the wife to arrange for their accommodation.”
• “The children both told independent people, being school counsellors, that they were fearful for the safety of themselves and the wife if they continued to live with the husband.”
• “It was largely the conduct of the husband which caused the wife and the children to vacate the former matrimonial home.”
• “On an interim basis, the wife and children should have the benefit of occupation of the former matrimonial home.”

1.  Davis & Davis (1976) FLC 90-062 the Full Court (Evatt CJ, Pawley & Ellis JJ) (at page 75,309 
2.  Fedele & Fedele (1986) FLC 91-744 the Full Court (Fogarty, Murray and Nygh JJ)