What are the Principles under Section 114(1) of the Family Law Act in Australia?
The principles to be applied in making an order for sole use and occupancy of the former matrimonial home pursuant to s 114(1) of the Act are to be understood in light of the observations about the general nature of the injunctive powers of this section of the Act. They may be summarised as follows:
a) the Court may make such an order as it thinks proper;
b) there are no words of limitation in s 114(1)other than the requirement that the grant of an injunction must be “proper”. A grant of an injunction is unlikely to be proper unless there is an appropriate factual basis supporting it;
c) an injunction that prohibits a person from living in their own home is of such gravity that it ought only be granted in restricted and exceptional circumstances;
d) it would be unlikely that the mere existence of tension in the home, short of evidence of unacceptable conduct, would lead the Court to grant an exclusion order;
e) the Court does not need to make a finding that the situation in the former matrimonial home is “intolerable” or “impossible”, it must simply be satisfied that it would not be reasonable or sensible or practicable to expect both parties to continue to reside in the premises together;
f) the matters which should be considered include the means and needs of the parties, including the availability of alternative accommodation and the suitability of that accommodation along with the financial circumstances of the parties, the needs and welfare of any children, the hardship to either party if an exclusion order is made or not made, and, where relevant, the conduct of one of the parties justifying an exclusion order;
g) the test for making an order for exclusive occupation is an objective one;
h) the question is what in all the circumstances of the case is fair, just and reasonable, and if it be fair, just and reasonable that one of the parties be excluded from the former matrimonial home, then that is what ought to happen;
i) the Court will consider the accommodation available to both parties and the hardship to which each will be exposed if an order is granted or refused, and will then consider if it is sensible to expect the parties to remain living in the premises together;
j) while the decision ought not be made merely on the balance of convenience in practice the case will often rest on what the balance of convenience requires, and in cases of intense marital disharmony, frequently coupled with assaults by one party upon the other, the Court may require little persuasion to take the view that the balance of convenience requires that one party have the sole occupation of the home;
k) it should only be compelling circumstances which would justify the making of such an injunction (in effect, excluding a party from the former matrimonial home) against a party who is not to blame for the breakdown of the marriage, or who, of the two partners, is demonstrably the less responsible for what has happened;
The above list is not exhaustive. It is a convenient summary of the key principles.
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