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What does a Family Law Court do with Kick-out Orders?

Andrew Ekert

23 Feb 2021

Topics

  • Family Law

Very often we meet family law clients who have been forced to apply for family violence orders (FVOs) against their ex-partners. FVOs (sometimes also known as intervention orders) usually stop an ex-partner from being at or near the home of the person protected by the FVO.

Just as often, we meet family law clients whose ex-partners have asked the Court to make orders that our client leave their home so that their former partner can move in. This is known as a ‘sole occupation order’ and is most commonly sought where the property was both parties’ former home during the relationship.

But what happens when these two situations collide?

Snedden Hall & Gallop recently represented a client in this exact situation and, with the wise assistance of barrister Dr Juliet Behrens, achieved an amazing result for our client.

In Spears & Caro [2020] FamCA 985, our client, the wife, had obtained an FVO against her former partner which stopped him from being in the home they both used to live in. After she obtained the FVO, the husband asked the Family Court to order that our client leave this house (or another one she owned) so that he could move in.

In a carefully considered judgment, His Honour Justice Gill decided that in this situation section 114AB of the Family Law Act prevented the husband from even asking the Court to make a sole occupancy order in the first place. Justice Gill ultimately ordered that the husband’s sole occupancy application be struck out and dismissed.

How can we help?

If you find yourself in a similar situation, or want some advice about how to deal with your ex-partner, the family law team at Snedden Hall & Gallop are here to help. Feel free to give us a call on 02 6285 8000 or send us an email to get in touch with one of our family lawyers.