'Exclusive Occupation' of the Home in Family Law Proceedings
Updated: Apr 27
Separating from a spouse or a significant other can be stressful at the best of times. Typically, issues arise where both parties refuse to give up their right to reside in the family home. This raises the question, who has the right to remain in the family home?
Ordinarily, one or both of the parties will agree to move out of the family home in a bid to move on and sever their ties to the relationship. However, in some circumstances both parties will refuse to leave the family home, which often results in a hostile living situation.
In these circumstances, an aggrieved party may apply to the Family Court of Western Australia for an exclusive occupation order. The Court may grant this order where they consider it ‘proper’ in the particular circumstances of that case. The power to make a “sole use and occupancy” order is by way of injunction. For married or de facto couples, these orders are made by reference to sections 114(1) and 114(2a) of the Family Law Act 1975 (Cth), respectively.
Where the matter involves children, the Court may grant one of the aforementioned injunctions to restrain a party from entering or remaining in the child’s place of residence if they deem this action necessary to protect and advance the welfare of the child. Essentially, the Court’s paramount duty will be to protect children from psychological stresses caused by friction between parents, and this is primarily encapsulated by the Court’s obligation to make orders that prioritise the best interests of the children.
Matters involving children:
In the case VCM v KRM  FMCAfam 108, a mother who resided with her husband and 3 children sought exclusive occupation of the family home. In making its decision to grant the exclusive occupation of the family home to the mother and the children, the Court had to determine whether this order would be in the children’s best interests.
The Court turned its mind to several circumstances, including but not limited to the fact that:
The parents often fought verbally;
The parents fought physically; and
The children were in the care of the mother.
In making this order, the Court essentially restrained the Father from occupying the family home as the circumstances of the case were such that the Court deemed it in the children’s interests that they reside solely with their mother at the family home.
Factors considered in making an Order for Exclusive Occupation:
The Court will take into account a number of considerations when deciding whether a particular party should gain the right to solely occupy the family home.
The overarching consideration of the Court is as to the practicality of granting exclusive occupation, having regards to the realities of family life (Bassett v Bassett  1 ALL ER 513, 520)
The relevant factors outlined in recent case authority is as follows:
Needs of children
If children are involved, then the needs of the children are a matter that is always at the forefront of the Court’s mind when making a decision. We note that it is common for the party who cares for the children to be provided exclusive occupation of the family home (In the Marriage of Gillie).
Likely Hardship to the children or either party
The Court will also take into consideration the hardship that will be suffered by both parties from an emotional and financial perspective if exclusive occupation is not granted to them. If there are children involved, then their needs will be given paramount consideration.
Practical effect on Family life
The practical effect of an order is a primary consideration of the Court. This factor is assessed with reference to the realities of family life should one party gain rights to exclusive occupation over the other (Basset v Basset).
Means of the Parties
The Court will also consider the means and needs of the parties. This involves the Court turning its mind to the costs involved in moving homes and finding alternative accommodation. The Court will also consider whether or not the home subject to the order is used as an integral part of either of the parties’ business operations (Mafrica v Mafrica).
Conduct of the Parties
Finally, the Court will take the conduct of the parties into consideration when deciding whether or not one party should be granted exclusive occupation over another. This relates to whether physical or verbal abuse has been directed to one party by the other.
This becomes a particularly relevant factor where the abuse is such that one party fears for their safety or the children’s. In these circumstances, the aggrieved party will often be successful in an application for the exclusive occupation of the property (In the Marriage of Davies).
The Court in Saveree & Elenton noted that the factors considered are non-exhaustive and each case must ultimately be determined on its facts. The Family Court will only make an order for exclusive occupation where it considers this action to be ‘just and fair’ in all of the circumstances.
Please note the above is general in nature and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific facts of your legal matter.