On March 14 2014

The issue often arises during relationship breakdown as to who will remain living at the former matrimonial home; and who will move out. Some people can manage to resolve the impasse amicably while others can agree to remain separated under one roof.

For those who can’t agree the court has power pursuant to the Family Law Act 1975 (“FLA”) to order that one party has sole use and occupation of the former matrimonial home.

The court’s power

The power to make a “sole use and occupancy” order is by way of injunction.

For married couples the relevant section is 114(1) FLA which provides the court may make:

  • “An injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated”[i];
  • “An injunction relating to the use or occupancy of the matrimonial home”[ii].

For de facto couples there is similar power in section 114(2A) FLA. In a de facto financial cause the court may:

  • “Make such order or grant such injunction as it considers proper with respect to the use or occupancy of a specified residence of the parties to the de facto relationship or either of them; and[iii]
  • “If it makes an order or grants an injunction under paragraph (a)–make such order or grant such injunction as it considers proper with respect to restraining a party to the de facto relationship from entering or remaining in:
    • that residence; or
    • a specified area in which that residence is situated; and[iv]
    • Make such order or grant such injunction as it considers proper with respect to the property of the parties to the de facto relationship or either of them.[v]

Again the test is what the court “considers proper”.

There appears to be a separate power with respect to de facto couples in section 90SS (5) FLA. This section provides:

  • The court may grant an interlocutory injunction; or an injunction in aid of the enforcement of a decree in any case in which it appears to the court to be just or convenient to do so; and grant an injunction either unconditionally or upon such terms and conditions as the court considers appropriate.[vi]

The criterion here is where it appears to the court “just or convenient” as opposed to what the court “considers proper”.[vii]

Another situation which has arisen in the context of de facto matters is jurisdiction to make the injunction on an interim basis when the existence of the de facto relationship is in dispute.

In Locke & Norton [2013] FCCA 1154 the applicant de facto wife sought injunctions, that, inter alia, the respondent be prevented from evicting her from the home pending the final hearing of her de facto property claim.

The respondent denied that there was a de facto relationship and, therefore, disputed the Court’s jurisdiction to make such an order.

The facts were the applicant wife was impecunious while the respondent was a man of means with several properties. The respondent described the applicant as a “kept woman” i.e. boys friend and girlfriend relationship at best.

The court found there was jurisdiction to make the order. The court said at paragraph 29 it was open to the applicant to rely upon the provisions of s 114(2A). At para 30 Judge Scarlett said:

True it is that the very existence of the claimed de facto relationship is in issue, but it would lead in my view to an unjust situation for an applicant in the nature of the applicant in this case if there was no jurisdiction to seek an injunctive order to preserve the status quo until the de facto relationship can be established.

The Test – grant an injunction the court considers “proper”

Leave aside what section 90SS (5) FLA might mean for de facto couples, the test has been examined in a number of cases.

The often cited passage from Davis & Davis was recently referred to again in Saveree & Elenton [2014] FamCA 38 at 16 as the correct approach:

The criteria for the exercise of the power under sec. 114(1) 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[viii].

The court in Saveree & Elenton also referred to authority that the criteria listed in Davis & Davis are not exhaustive and each case must ultimately be determined on its facts.[ix]

Practical considerations

Generally these type of injunctions are sought on an interim basis so the usual limitations of an abridged hearing apply. Saveree & Elenton is a good example of the sort of evidence that satisfied Justice Stevenson with respect to the injunction being “proper”. In this case:

  • Allegations of non-physical family violence and abuse were made. The husband was very verbally aggressive, abusive and damaged furniture etc over a 5 year period escalating. The husband admitted to quite a bit of the-behaviour i.e. the family violence was largely not a contested fact;
  • There was strong evidence of the negative effect of the conflict on the children who were sitting exams. Reports were made to school counsellors who provided evidence of their significant concerns and negative impact on the children. Again, this evidence was not largely in dispute;
  • There was hardship to the wife in terms of finding alternate accommodation; and that she operated a business from home seeing 8 clients per week, and she worked at schools in the area – This was another non contentious fact;
  • The husband’s financial circumstances indicated he would be able to find alternate accommodation. The court acknowledged he would experience hardship but he had secure employment and liquid funds (savings of $45,000). In his financial statement the husband claimed weekly credit card expenses of $700 but only about $1,600 was owing on 2 cards;
  • There was no realistic prospect of the children living with the husband at the matrimonial home i.e. 3 moves or 1 move.

The court placed significant weight on the ill effects the children were experiencing from the violence/conflict in weighing up all the factor including the seriousness of an order excluding a person form their property.[x]

The decision can be contrasted with several recent decisions where the injunction was not granted.

In Kanelos & Kanelos [2014] FamCA 36 (4 February 2014) the parties each gave conflicting accounts of family violence, each alleging the other was the aggressor with no independent corroboration. This matter was also before Justice Stevenson.

In declining to make the order Her Honour said at 43:

have no reason at all to prefer one parties’ version of these events to that of the other. I would observe that, if the wife has genuine fears for her safety or security, nothing whatsoever prevents her from seeking an apprehended violence order against the husband pursuant to State legislation.

Another situation where the order was not made is Kimberley [2011] FamCA 406 (7 June 2011) were both parties sought sole occupancy of the matrimonial home.

Watts J said at paragraphs 39 to 43:

An order for exclusive occupation is made pursuant to s 114(1) (f) FLA. In doing so, I may make an order which I consider ‘proper’. Orders giving exclusive use or occupation of a matrimonial home are only made with caution. It is a serious matter to turn a spouse out of their home. The onus is on the mother to establish a case for exclusion of the father.

The decision in respect of exclusive occupation is not merely something that is decided on a balance of convenience. The consideration of convenience is only one element of getting to a decision as to what order might be proper in the circumstances of an individual case.

Matters which I need to consider include the means and needs of the parties; the needs of the children; the hardship to either party or to the children; and if relevant, conduct of the parties (see Davis & Davis (1976) FLC 90-062). These considerations are not meant to be exhaustive. Part of the considerations in relation to needs is the question as to whether or not the mother in this case can be adequately housed elsewhere and whether there are financial resources to allow her to be housed independently. Balance of convenience is a matter that I would need to take into account.

As Wood J observed in Dean & Dean (1977) FLC 90-213, in cases of intense matrimonial disharmony, frequently coupled with assaults by one party to the other, and often occasioning distress to the children, the court needs very little persuasion to take the view that the balance of convenience requires that the mother have sole occupancy of the matrimonial home with the children. As that case showed however, each case needs to be looked at on its own facts.

At paragraph 61 His Honour said:

I do not find it is proper to remove the father from the matrimonial home, although it might be more convenient for the mother for that to happen.

Care needs to be taken in bringing these applications to ensure that sufficient evidence is available in the context of the interim hearing for the order to be made.

In relation to an injunction pursuant to section 90SS(5) FLA in a de facto matter, based on the comments made by Justice Watts in Kimberley, my view is a decision with respect to what is “convenient” may be easier to obtain than one with respect to what is “proper”; although the seriousness of any order placing a significant restriction of a proprietary right can’t be ignored.

[i] Family Law Act 1975 section 114(1)(b);

[ii] Family Law Act 1975 section 114(1)(f);

[iii] Family Law Act 1975 section 114(2A)(a);

[iv] Family Law Act 1975 section 114(2A)(b);

[v] Family Law Act 1975 section 114(2A)(c);

[vi] Family Law Act 1975 section 90SS(5)(a) and (b);

[vii] With respect to the “considers proper” test the court in Kimberley [2011] FamCA 406 said “the decision in respect of exclusive use and occupation is not merely something that is decided on the balance of convenience. The consideration of convenience is only one element of getting to a decision as to what order might be proper in the circumstances of an individual case.” Section 90SS(5) seems to say “convenience” need be the only criteria required for an injunction to be made;

[viii] Davis & Davis (1976) FLC 90-062 the Full Court (Evatt CJ, Pawley & Ellis JJ) said (at page 75,309);

[ix] Fedele & Fedele (1986) FLC 91-744  (Fogarty, Murray and Nygh JJ);

[x] The court referred to comments by Murray in O’Dea & O’Dea (1980) FLC 90-896.