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The power of the Court to make an order for sole use and occupancy derives from s 114 of the Family Law Act. A separation lawyer can assist you to put forward or defend this application that would allow a party to live in the property to the exclusion of the other party.

In the case of Belcher & Gardener [2019] FamCA 205 (5 April 2019) the husband brought an application for sole use and occupancy for the holiday home (“the holiday house”) that was registered in the wife’s sole name.

The husband and wife were married for 24 years when they separated in July 2018. The parties had four children, two of whom remain living with the wife in the former matrimonial home. The husband vacated the former matrimonial home and was renting a one-bedroom apartment with his cousin.

The separation lawyer for the wife estimated that the total property pool of the parties was in the vicinity of $20 million. The holiday house had an estimated value of $3.5million. While the wife  was currently unemployed, the husband was a director of a consultancy company. The wife estimated the husband’s earnings to be about $750,000 per annum. Notwithstanding it was his application, the husband did not reveal the sources of his income or assets and therefore his version of events was incomplete.

Since separation, the husband’s relationship with the children was tense.

In terms of the holiday house, the wife swore that the children have used and continue to use the property as a holiday house.

In support of his application for sole use and occupation of the holiday house, the separation lawyer for the husband urged the court to consider:

  1. His current rental accommodation is insufficient for his needs
  2. He can work remotely
  3. His proposal was more commercially viable and cost-effective
  4. He could avoid the cost of renting
  5. His current accommodation was too small to foster a relationship with his children
  6. There would be no prejudice to the wife

Legal principles

The Court found that the correct legal principles to apply were those in In the Marriage of Davis. The relevant criteria being:

  1. The means and needs of the parties;
  2. The needs of the children;
  3. The hardship to either party of to the children; and
  4. Where relevant, the conduct of one party which may justify the other party leaving the home

The Court did not accept that the husband needed the sole occupancy given the substantial property pool and his assets. The husband’s argument about the cost-effectiveness was not relevant to the husband’s needs.

On the second consideration, the Court suggested that if the husband was granted occupancy of the holiday house, the children were unlikely to continue using the home given the strained relationship. Accordingly, the husband’s use of the property would be “deleterious to the children’s emotional fabric” and would not advance the children’s needs. This, in turn, would cause hardship to the children and mother.

On the last consideration, the Court found the parties did not exhibit a relationship of “intense disharmony” and the conduct of the parties was not relevant in the circumstances.

Overall, the criteria were not met and the Court refused the husband’s application for sole use and occupancy of the holiday house.

For advice about obtaining sole use and occupancy of a property contact us on 1800 300 170 or email us at



Family law situations can be complex and sometimes they can involve serious issues.  Information outlined is proposed to provide general guidance only. Due to the seriousness of legal matters as well as the uniqueness of your individual situation, professional advice should be sought. For advice, please contact one of our Family Lawyers.