SOLE OCCUPATION OF THE FORMER MATRIMONIAL HOME
- The wife seeks an order that the husband vacate the former matrimonial home, which is the main residence on the property and move into the “granny flat”, which forms part of the same building, where the wife and children currently reside.
- The husband opposes such an order being made.
- Section 114 of the Act provides the court may make such order or grant such injunction “as it considers proper” with respect to a matter to which the proceedings relate.
- In Sieling v Sieling  FamCA 23; (1979) FLC 90-627 the Full Court said:
The power to grant injunctions is, of course, a discretionary power, not to be exercised lightly. The Court must balance the hardship to each party of granting or refusing an order, and frame its order in such a way as to impose no further restriction than is necessary to achieve the protection of the applicant’s interest. It will not lightly interfere with the rights of an owner of property on the basis of a vague or uncertain claim. There must be circumstances arising out of the marital relationship which make it necessary to restrain, temporarily, a spouse from using his or her property rights to the detriment of the other party.
- In Davis & Davis  FamCA 38; (1976) FLC 90-062 at 75,309 the Full Court said that considerations include:
…the means and needs of the parties, the needs of the children, hardship to either party or to the children and, where relevant, conduct of one party which may justify the other party in leaving the home or in asking for the expulsion from the home of the first party.
- It is the wife’s contention that the former matrimonial home is substantially larger than the “granny flat” in which she currently resides with the children and in circumstances where the children live primarily with her she and the children should live in the main residence. She further contends that the husband is living alone in the larger residence and is not living there for significant periods of time while he spends time at his other properties. It is her position that the balance of convenience favours the husband vacating the main residence and moving into the “granny flat”.
- The husband contends that the term “granny flat” for the smaller residence on the property is a misnomer as the residence has three bedrooms and a bathroom. It is not disputed by the wife that the “granny flat” has multiple bedrooms, a bathroom, a laundry and is liveable.
- I am of the view that while the current residence of the wife and the children may not be ideal in her eyes, the wife is not entitled to the same standard of living that the parties enjoyed prior to separation but to a standard that is reasonable and adequate. In circumstances where the wife and children’s residence is adequate to meet their daily needs I do not make orders for the husband to vacate the main residence of the former matrimonial home. The ultimate occupation of the former matrimonial home will be a matter for final hearing.
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Brisbane / Gold Coast / Sunshine Coast / Townsville