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Exclusive Occupancy Order: A tale of two sorrows

By July 18, 2019February 23rd, 2024No Comments

The mother and father were both very sick. He had suffered from cancer and other ailments, she had seen a progression of her neurological disease. They shared the care of their little boy. The father had been violent towards the mother, in front of the child. She eventually left him, couchsurfing with the boy, and they were now living out of an AirB’n’B.

The couple was now making consent orders for the father to spend Wednesday and Sunday overnights with the boy, and for them to both hold equal shared parental responsibility. In the absence of any property settlement, however, they were in dispute over who could now live in the former family home. The father wouldn’t move out; he suggested they co-habit. But she feared him after “a long history of domestic violence”, and anyway, she mentioned his ADVO.

The judge in this case (pseudonymised as Durnin & Durnin) heard recently in the family court in Sydney, had to decide whether the mother should be granted an Exclusive Occupancy Order to the family home, in a context where both parties claimed the outcome would cause them hardship. In this case, the hardship was physical and emotional, rather than financial, as the court noted that each of them had the financial capacity to move elsewhere. Instead, the judge had to balance one person’s suffering against another, deliberating over whose hardship would conceivably be worst in deciding whether to issue an Exclusive Occupancy Order in the matter.

The Family Law Act deals with Exclusive Occupancy Orders under subsection 114(1)(f). In this case, the judge noted the fact that the courts appear to have softened their attitude towards Exclusive Occupancy Orders. Applicants no longer have to show that it’s “impossible” or “intolerable” to keep living together under one roof, or that some conduct of the other party justifies exclusion from the shared home. The parties only have to show how a shared situation is now not “reasonable” or “sensible” or “practicable”.

How the move would affect the parties’ child was not discussed at great length. The mother referenced the community surrounding her former family home as providing respite care for her on occasion, and said “the child would benefit from living in the family home with her…he is familiar with it and has many friends living nearby”.

The wife successfully argued that the family home would cause her the least distress, being most familiar and navigable, and not leading to a flareup of her symptoms. The husband said that his life, if he had to move, would be more unpleasant. But he did not successfully link the manifestations of his disease to a move in residence.  The judge leaned towards lessening the wife’s suffering by allowing her to dwell in the family home.

The court dismissed the father’s argument that he and the mother and child should all remain living under one roof. It’s hard to see how future police and legal restraints could work in such a situation anyway, and whether a family court could order a fearful mother to live with her alleged abuser.

The takeaway?

If you intend to argue that your medical condition is relevant to why you should be granted an Exclusive Occupancy Order, make sure you can directly link where you are or will be living to an identifiable impact on your health—whether that’s a benefit from living in your family home, to a risk of flareup of your systems from the stress of moving to a new house, to how the exacerbation of your illness will likely impact your parental capacity. The husband said his medical conditions affected his lifestyle “in mostly minor ways if there is no flareup of symptoms”, but crucially, did not say that changing living arrangements would cause such a flareup.

You can read the case in full here.

Do you need family law help? Please call Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain legal advice, please contact Alliance Legal Services.


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