One of the issues often faced by a separated couple is which of them should remain living in the family home, and who should find new accommodation.
The Federal Circuit Court and Family Court of Australia both have the power to grant injunctions. Injunctions are court orders which prohibit people from doing certain things.
The Family Law Act specifically gives a court the power to grant an injunction relating to the use or occupancy of the family home. This is a broad power and the only guideline given to the court is that it may ‘grant such injunction as it considers proper’. Each party must show the court why he or she should remain living in the family home.
There are various factors that the court will consider, including:
· The income and expenses of each party;
· Whether hardship would be caused to either party;
· If there are any children and if so whether hardship would be caused to them; and
· If the behaviour of one party has forced the other party to leave the family home, or justifies expelling the first party from the home.
In the case of Savaree & Elenton [2014], the wife applied to have sole occupation of the family home with the children. The husband applied for the wife and children to occupy the second story of the house, and for him to occupy the first. The husband had a reasonable income and enough savings that he could comfortably afford new rental accommodation. The wife had a small income conducting a healthcare practice from the family home and could not easily find new accommodation with the children. The husband had demonstrated significant anger issues and the children did not wish to live with the father because of this. The eldest child was completing her year 12 studies and would go live with friends if the husband were granted occupation of the family home. The court was concerned that this would be disruptive to the child’s year 12 studies. Ultimately, the court ordered that the wife have sole occupation and use of the family home.