I don’t know about you, but if, in the aftermath of separation, someone needs to go to the cost, time and expense of bringing a Sole Use and Occupation Application, it’s usually a sign that they should not have remained under the same roof after separation.
Justice Schonell QC recently found himself adjudicating a case where the Wife wanted to remain in the home and for the Husband to leave and where the Husband resisted the argument and suggested that the Order should be declined and that couple could remain living together in the one home.
After a twenty (20) or twenty-one (21) year relationship depending on whose version one accepts, the birth of two (2) children now twenty (20) and sixteen (16), the couple could not agree on who was to leave the home.
The Wife presented with a psychiatrist’s report informing she suffered bipolar disorder and her treating psychiatrist’s opinion highlighted her health would suffer if she had to relocate and that she was under stress as a result of the separation. Her bipolar disorder, the practitioner said, made her more susceptible to feeling heightened positive and negative emotions and even recommended using a second room at Court to help her self-regulate.
The psychiatrist was also at pains to point out that there had been some stability in the Wife’s mental health, which was to her credit.
Each party had healthy bank balances which would have sustained rental payments during the matter, as well as available income.
His Honour adopted the approach of Deputy Chief Justice McClelland in Dickinson & Packam [2021] Fam CA 298, which was to consider the matter in two stages, being first to consider whether given the circumstances of the parties, a sole use and possession order was necessary and second, to consider which of the parties should have the order.
His Honour identified that the Wife complained of family violence, intimidation and feeling intimidated and threatened, but that her evidence was disputed and of a generalised nature.
His Honour referred to the nature of interim hearings and felt that he could not find that the Wife was a victim of domestic violence.
His Honour thought there might be some discomfort in leaving the couple occupying the residence together, and that the Wife may find it tense, he was not satisfied that it would be proper to exclude the Husband from the couple’s large home where each could have their own room.
His Honour felt the psychiatrist’s evidence did not establish the Wife’s health had been compromised by living together.
His Honour reasoned that he was also comforted by the Husband’s provision of consent (without admissions) to a non-denigration order and gave confirmation that he would not take steps to remove or exclude the Wife from the home.
What should we take from this decision?
- The psychiatrist’s evidence probably needed to be addressed more sharply to the legal test His Honour would ultimately apply and what would become of the Wife if an Order was made requiring the parties to continue living together;
- The key parts of the psychiatrist’s report mentioned stability as opposed to crisis – if the Wife said there was a crisis, it was not supported by her psychiatrist’s report;
- The Wife’s own evidence was critiqued as being generalised and lacking probity, so the need for specific examples of family violence and having same properly framed is going to be key; and
- Key evidence did not ultimately support a finding that an Order was “necessary”.
At the end of the day, underlying the decision was the ability of each party to use available resources (hundreds of thousands of dollars in bank accounts) to leave if they truly were in either danger or an untenable situation.
This Applicant did choose to undertake expensive proceedings over making a decision to spend funds on a rental property.