MEDICUS MARCH 2016

F A M I L Y L AW

given to Mr Dass’ employment and his reliance upon the former family home to maintain his employment, which was required to service the mortgage of the home. There are many factors the Court will consider when determining if it is appropriate to grant exclusive occupation. As noted in Dass v Dell⁹ , allegations of physical violence is no longer a predominant consideration. The Court will balance all the relevant factors of the family, and the party’s employment circumstances when making a decision. It is advisable for each party to seek legal advice as to their legal entitlements and advice on the best way to proceed. Framy Anne Browne is the lead Partner of the Family Law team at WA law firm Lavan Legal. ■ References: 1 [2015] FCWAM 181 (18 August 2015) [63] 2 [2014] FCWAM 153 (10 July 2014) [33] 3 [1975] 1 ALL ER 513, 520 be granted exclusive occupation, the over- arching guideline is the practicality of granting exclusive occupation, having regards to the realities of family life When the Court considers the question of whether one party should

down a fixed criteria which must be established for the application to succeed ( Dass v Dell¹; Kerslake v Kerslake² ). APPLICATIONS FOR EXCLUSIVE OCCUPATION Considerations: When the Court considers the question of whether one party should be granted exclusive occupation, the over-arching guideline is the practicality of granting exclusive occupation, having regards to the realities of family life ( Bassett v Bassett³ ). Means and needs of the parties: The Court should consider the income and financial resources of the parties to meet costs of relocating and whether any alternative accommodation is available for either party. The Court may also consider the degree to which the former family home is an essential part of a business owned and/or run by one of the parties ( Mafrica v Mafrica⁴ ). Needs of children: If there are children to the marriage, each child’s needs are a predominant consideration. It is common for the party who has the primary care of the children to remain living in the former family home with the children ( In the Marriage of Gillie⁵ ). Hardship to either party or to the children: The Court should balance the financial and emotional hardships each party, including the children, will face if they are not granted exclusive occupation of the former family home. If the children were to be housed in unsuitable accommodation, it is likely the party with the primary care of the children will be granted exclusive occupation.

essential matter to be taken into account when granting exclusive occupation. However, the modern approach has viewed the conduct of the parties as only one of many considerations ( In the Marriage of Davies⁷ ). Where there has been physical violence or allegations of physical violence which causes a party to fear for their safety, that party will often be granted exclusive occupation of the former family home ( In the Marriage of Harris⁷ ). It is necessary to note the party who is the registered proprietor of the property is not a relevant consideration. The Court will make whatever order it considers to be fair and just in the circumstances of the case. application was made by Mr Dass, the former de facto partner of Ms Dell, for exclusive occupation of the former family home. Mr Dass worked out of his home office and was required to be on call 24 hours a day, seven days a week. Mr Dass also kept confidential and sensitive security records at the former family home. The former family home was also his registered address of employment. Mr Dass had left the former family home prior to commencing the Court proceedings, to comply with a violence restraining order taken out against him by Ms Dell. Ms Dell did not wish to retain the former family home, but rather sought the sale of the property. At the time of the Court proceedings, Ms Dell was living in the former family home. A RECENT DECISION In the case of Dass v Dell⁸ , an

4 [2015] FCWAM 103 5 (1978) 4 Fam LR 127 6 (1982) 8 Fam LR 975 7 (1980) 5 Fam LR 852

8 [2015] FCWAM 181 (18 August 2015) 9 [2015] FCWAM 181 (18 August 2015)

Conduct of the parties: Conduct of the parties was traditionally an

The judge granted Mr Dass exclusive occupation. Significant weight was

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