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EXCLUSIVE OCCUPATION ORDER

This is an independent injunction. It does not have to be associated with any other form of release.

To obtain such an injunction proceedings must be between parties to a marriage arising out of the martial relationship.

A party can seek an Exclusive Occupation Order not only under the Family Law Act but also under the Domestic and Family Violence Protection Act (Queensland) if there are allegations of violence (refer to Information Sheet on Domestic Violence).

It should be noted that if a person takes action under the Queensland Act for Exclusive Occupation Order first, that person cannot subsequently institute proceedings in respect of the same matter in the Family Court.

Exclusive Occupation Order Under the Family Law Act

The Court regards it as a very serious matter to exclude a party from the matrimonial home.

An Application for an Exclusive Occupation Order involves two (2) questions:

Should the property be occupied by one (1) party;

Which party should leave.

The onus of establishing a case of exclusive occupation will rest on the party seeking the exclusion Order.

The test is that it must be proper to make an Exclusive Occupation Order. In determining what is proper the Court needs to determine whether or not it is reasonable or sensible or practical to expect the parties to remain in the home together.

The test is an objective one. Each case is determined on it's own merits and having regard to its own facts.

The fact that the home is registered in one party's name only is irrelevant.

The Court ought not however, Order that a party be removed from a property unless it is of the opinion that such a course is necessary rather than merely convenient (an Exclusive Occupation Order should be granted only for good reasons and should not be made lightly. It should exist on more substantial grounds rather than mere balance of convenience).

An Exclusive Occupation Order should not depend merely on balance of convenience or hardship. However, balance of convenience may properly decide the matter where there is intense disharmony between the parties to a marriage or where each would have an equally good case for excluding the other.

The Court will have regard to the following guidelines when deciding whether an Exclusive Occupation Order should be made:

Means and Needs of Parties

Includes consideration of:

Income and financial resources of the parties;

Presence and availability of alternative accommodation;

The degree to which the home is an essential part of any business owned or run by a party.

The Needs of Children

Although not conclusive, the predominant consideration has usually been that the party who has the care and control of the children should continue to live in the matrimonial home.

Hardship to Either Party or to the Children of the Marriage

The Court will consider the position of both parties and the alternatives which face them if an Order for exclusion is or is not made. The Court must balance the hardship to each party in granting or refusing an Order.

Conduct of Parties

Conduct is not an essential consideration. It is only one matter to be taken into account. Conduct which is only annoying behaviour is insufficient to cause expulsion. Similarly, it is not sufficient to exclude one spouse from the former matrimonial home simply to allow the other spouse to live more peacefully in the other's absence.

Physical Assault

Putting a party in fear of his/her life would be sufficient for expulsion.

The cause of the problem leading to a spouse to seek an Exclusive Occupation Order should not be of the Applicant's own making.


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