A party can seek an Order that they occupy a home and that the other spouse be excluded. These Orders can be obtained as an injunction under the Family Law Act and also as an additional Order when a Domestic Violence Order is obtained.

An Application for an Order for exclusive occupation can be made by way of an Application to the Family Court of Australia or Federal Magistrates Court of Australia. That Application must be supported by an Affidavit which sets out the grounds/reasons for the application, ie why the Applicant would be left in the house and the other spouse should leave.

The spouse who makes the Application is the one who has to convince the court that the other spouse should leave.

While each case is determined on its own merit, it is plain that the court will not make an Order unless one party must be removed. It is not enough that it would simply be convenient to have a party removed.

The court will take into account all of the factors but these matters are often raised: -

• The financial position of the parties. The court will need to know about the income and expenses of the parties, the availability of alternate accommodation and whether or not a home based business is run from the home;
• The needs of the children. This can be difficult when both parties claim to be the principal caregiver of the children. The main consideration for the court would be that the party who has always had the major care of the children would continue to live in the home;
• Hardship to either party or the children. The court must consider the position of the parties and the alternatives available to them if the Order is not made. The court has the task of balancing the hardship to each party;
• Conduct of the parties. The court will not evict one party from the home if their behaviour is simply annoying;
• Assault. A physical assault/causing a party to fear for their life or safety might be a sufficient reason to cause the court to grant an Order for sole occupation.