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What Happens if I am the one to leave the home? Am I at fault? Can I go back?

20/12/2021

Often times the breakdown of a marriage or a relationship will occur when both parties to the marriage or the relationship are living together in one home.  If there are children, then the children will usually be residing with their parents.  Watson & Watson are regularly asked to advise what rights a person has and how those rights might be affected by the decision of whether to go or to stay.

Typical questions are:

  • If I leave home am I the one who the Court will think is at fault?
  • If I leave can I come back?
  • If I leave do I lose my rights to property?
  • If I leave do I still have to pay the mortgage?
  • If I leave can the children come with me?

Watson and Watson act on Application for Exclusive Occupancy

Watson & Watson acted for a wife in circumstances where the advice was that the wife would be able to return to the former matrimonial home subject to there being an Order by the Federal Circuit Court of Australia for exclusive occupancy.

Background Facts

The husband and wife both resided with their teenage children in the home which was registered in the names of the husband and wife.  The marriage had been deteriorating for a long time and the parties separated under one roof.  There were teenage children living at home. 

The wife hoped that the husband would leave but the husband would not leave and the situation was that neither the husband nor the wife would move out of the house. 

The shared occupancy of the home by each of the husband and wife became increasingly difficult.  The wife was concerned in relation to the safety of the children within the household and decided that she could not continue to live in the home.

The wife relocated with the children to a different area and left the husband in the home.  The change was significant for the children as they were enrolled in new schools and were living in a new and unfamiliar community.  The husband did not oppose the wife’s relocation and was content to stay in the home and have it to himself. 

The wife’s relocation was not what she had hoped it would be and she wished to return to the home with the children but was concerned about what would happen if she simply moved back.  She knew that the locks had been changed and believed that the attitude of the husband towards her return to the home would be hostile.

The wife sought advice as to her rights and how to return to the former matrimonial home.

Watson & Watson Advice

The home was registered in joint names and both the husband and wife had a right to live in the house. The husband occupied the home and was unlikely to move out if the wife and children returned. Watson & Watson advised the wife to make an application to the Federal Circuit and Family Court of Australia and to seek Orders firstly, requiring the husband to vacate the house and secondly, the husband not to return to the home and an Order granting the wife exclusive occupancy of the home. In other words, that the wife has the exclusive right to reside in the home with the children and that the husband be excluded from the home.

Applications for Exclusive Occupancy in the Federal Circuit and Family Court of Australia

The Federal Circuit and Family Court of Australia have power to grant an injunction (an Order) 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.  The Court can order exclusive occupation of the home by one party.  This also applies to parties in de facto relationships.

How Does the Court Decide Who Gets to Stay Who Has to Go

The Court applies a test of what is just or convenient in de facto matters and what it considers proper in cases of the marriages.  The Court decides this type of case in accordance with the principles in Davis and Davis.

In Davis and Davis (1976) the Full Court of the Federal Circuit and Family Court of Australia referred to matters which should be considered by any Court when deciding whether to give a spouse exclusive use or occupation of the matrimonial home: 

“The criteria for the exercise of the power under sec 114(1) are simply that the Court may make such an 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.”

The Court will consider:

  • The means and needs of the parties.
  • The needs of the children. 
  • What are the interests of any children of the parties and what would be in their paramount interest? 
  • Hardship to either party or to the children. 
  • Whether the conduct of one party may justify the other party asking for sole occupancy. 
  • Is the party engaging in any improper behaviour such as intimidation or manipulation to prevent their spouse from pursuing his or her rights should they continue to reside in one home?
  • Whether one of the parties can be adequately housed elsewhere and whether any funds are available from either party’s resources to provide that housing?
  • For whom is it less convenient to live away from the matrimonial home?
  • Is it possible, in justice to force a party to establish for her/himself another home, or otherwise accepted inferior, accommodation without cause.

Application to the Court for Orders for Exclusive Occupancy must be supported by an Affidavit which provides evidence as to the matters that the Court will look at in the exercise of its discretion.

Outcome

In this case, the Application made by Watson & Watson on behalf of the wife was opposed by the husband.  The husband obtained legal representation and sought orders that he has the right to exclusive occupation of the home and that the wife be prevented from returning to the home.

Watson & Watson Lawyers prepared the case for hearing.  The Affidavit was prepared by Watson & Watson and addressed the criteria that the Court would need to consider when determining the merits of the competing Applications.  Watson & Watson issued a Subpoena to the Children’s Schools and to their treating Medical Practitioners.  The wife’s Application was successful and she returned to the family home with the children.

The Court took the view that on balance, the wife had greater need to occupy the home than the husband.  The Court made orders allowing the husband 7 days to vacate the home, after which time the wife could return and have the right to reside in the home to the exclusion of the husband. 

The case thereafter became one for final property division following breakdown of marriage.

If you find yourself in a position where after separation, you are unable to relocate to separate accommodation or have relocated and wish to return to the family home due to unforeseen/difficult circumstances and wish to know you rights, at Watson & Watson our highly experienced Senior Family Law Solicitors can assist you in this process.  We can also assist in relation to financial/property settlement.  Please contact Richard Watson Senior Family Law Solicitor or his Personal Assistant Shereen Da Gloria to discuss your matter and seek appropriate timely advice.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.

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