What does it mean and when will the Court make these orders?
When relationships break down, one of the most urgent and emotionally charged issues is often who remains living in the family home.
In some cases, it is simply not reasonable, safe or practical for both parties to continue living under the same roof. In those circumstances, the Court has power to make orders granting one party exclusive use and occupation of the former matrimonial home.
This article explains what exclusive occupation orders are, when they may be made, and the legal principles the Court applies.
What is an exclusive use and occupation order?
An exclusive use and occupation order allows one party to remain living in the former family home to the exclusion of the other party, even where:
- The home is jointly owned; or
- The excluded party is the sole registered owner.
Importantly, these orders do not change ownership of the property.
They regulate who may live in the home, not who ultimately owns it. Property ownership is dealt with later as part of the property settlement process.
Where does the Court get the power?
The Court’s power comes from section 114 of the Family Law Act 1975 (Cth).
Under this section, the Court may make such injunctions as it considers proper, including:
- Injunctions relating to the use or occupancy of the matrimonial home.
These orders can be made:
- On an interim (temporary) basis; or
- In urgent circumstances, sometimes very early in proceedings.
These are discretionary orders
Exclusive occupation orders are not automatic.
They involve the exercise of a judicial discretion, meaning the Court must decide whether it is proper, fair and reasonable to make such an order in the particular circumstances of the case.
Because an exclusion order prevents a person from living in their own home, the Court treats these applications seriously and cautiously.
Do exclusive occupation orders affect property rights?
No.
The High Court has confirmed that an order excluding one party from the home:
- Does not alter legal ownership, and
- Does not determine the final property settlement.
Even where a party is excluded for months or years, their legal interest in the property remains unchanged unless and until property orders are later made.
When will the Court consider making an order?
The Court does not need to find that living together is “impossible” or “intolerable”.
The test is whether it is reasonable, sensible or practicable to expect both parties to continue living in the home.
Each case turns on its own facts, but the Court commonly considers:
- The level of conflict between the parties;
- Whether there has been family violence, coercive control or intimidation;
- The safety and wellbeing of children;
- The availability of alternative accommodation;
- Each party’s financial circumstances;
- The hardship that would be caused if an order were made — or not made.
Mere tension or discomfort is usually not enough. However, where there is high conflict or family violence, the Court may be readily satisfied that separation under one roof is not realistic.
Family violence and exclusive occupation
Where there is evidence of:
- Physical violence;
- Emotional or psychological abuse;
- Coercive or controlling behaviour;
- Intimidation, threats or fear
the Court may find that exclusive occupation is necessary to:
- Protect a party’s safety;
- Stabilise living arrangements;
- Reduce ongoing conflict; and
- Prevent further harm.
These orders often operate alongside — or in addition to — Domestic Violence Orders made in the Magistrates Court.
A two-stage approach
Courts consider exclusive occupation in two stages:
- Is exclusive occupation necessary in the circumstances?
- If so, which party should remain in the home?
This approach ensures the Court first focuses on whether shared occupation is realistically workable before determining who should stay.
Interim proceedings only
Applications for exclusive occupation are usually heard on an interim basis, meaning:
- There is typically no cross-examination
- Facts may be disputed
- The Court must act on limited evidence.
The Court is not making final findings about who is “right” or “wrong”. Instead, it is managing risk, safety and practicality until final property matters are resolved.
These cases are highly fact-specific
There is no checklist that must be satisfied.
The Court assesses all circumstances and asks a simple but important question:
What is fair, just and reasonable in this case?
Because every family’s situation is different, legal advice tailored to your circumstances is critical before bringing — or responding to — an application of this nature.
If the situation is urgent — what should you do?
In Queensland, police have specific powers under the Domestic and Family Violence Protection Act 2012 (Qld) to issue Police Protection Directions in urgent domestic and family violence situations.
A Police Protection Direction may be issued immediately by police, without the need for a court application first, where an officer reasonably believes:
- Domestic and family violence has occurred; and
- A protection order is necessary to protect the aggrieved person from further violence.
A Police Protection Direction can include conditions such as:
- Directing a respondent to leave the home immediately;
- Prohibiting the respondent from returning to the property;
- Preventing contact with the aggrieved person; and
- Other conditions necessary to ensure safety.
These directions take effect immediately and can operate for a short period until the matter is brought before the Magistrates Court.
This means that, in urgent circumstances, police have the power to exclude a person from the home straight away, without waiting for Family Court proceedings.
How this interacts with Family Court exclusive occupation orders
Police protection powers and Family Court exclusive occupation orders serve different purposes.
- Police powers focus on immediate safety and risk management.
- Exclusive occupation orders focus on interim living arrangements within family law proceedings.
In many cases, police intervention is the appropriate first step where safety is at risk, with Family Court orders considered later once the situation has stabilised.
Safety planning and support
In some situations, staying in the property — even with legal protections in place — can increase risk, particularly where there has been ongoing coercive control, stalking, or monitoring.
For this reason, safety planning is critical.
Support services such as 1800RESPECT can assist with:
- Confidential safety planning tailored to your circumstances;
- Planning safe exits or alternative accommodation; and
- Referrals to local domestic and family violence support services.
📞 1800RESPECT (1800 737 732)
🌐 www.1800respect.org.au
(24 hours a day, 7 days a week)
Importantly, safety planning does not mean you must leave — it means having informed options and support to help keep you and any children safe.
Where there are safety concerns, these issues should be considered before pursuing longer-term family law arrangements, including exclusive occupation orders.
How Powell Family Law can help
Exclusive occupation applications are often urgent and emotionally charged, particularly where family violence or high conflict is involved.
At Powell Family Law, we regularly assist clients with:
- Urgent interim applications
- Exclusive occupation injunctions
- Coordination with domestic violence proceedings
- Strategic planning around property settlement.
If you need advice about whether exclusive occupation may be appropriate in your situation, we can help you understand your options clearly and safely.
