When relationships break down, one of the most pressing concerns many Australians face is :
Who can stay in the family home?
This question takes on added urgency in cases involving domestic violence, disputes about property rights, or where children's safety is in question.
In such cases, occupation orders become essential tools for managing who has the legal authority to remain in the home, especially when cohabitation is no longer safe or practical.
Unified Lawyers, a trusted and experienced team of family law solicitors based in Sydney - Gold Coast?, have helped hundreds of clients navigate the often complex terrain of family court occupancy disputes.
Our expertise in both legal strategy and compassionate client care ensures your safety and interests are protected.
This article explores the role of occupation orders in Australian family law, their legal grounding, who can apply, and what the application process involves.
We also dispel common myths and answer frequently asked questions.
What Is an Occupation Order?
Definition and Legal Basis
An occupation order is a type of court order issued by the Federal Circuit and Family Court of Australia (FCFCOA) under the Family Law Act 1975 (Cth).
It grants one party the right to occupy a home-typically the former family residence-either to the exclusion of the other party or with restricted access by them.
This type of order is distinct from a property settlement order, which deals with the long-term division of assets. Occupation orders are primarily concerned with the short- to medium-term occupancy arrangements following separation.
The court has broad discretionary powers under section 114 of the Family Law Act to make injunctions, including those that relate to the use or occupancy of the family home.
This power is used not only in situations of high conflict but also where peaceful cohabitation is no longer feasible.
When Is an Occupation Order Needed?
Occupation orders are frequently sought in circumstances such as :
- One partner refuses to leave the family home after separation.
- There is a credible risk of harm due to domestic violence or controlling behaviours.
- The presence of both parties in the same home contributes to emotional distress or trauma, particularly for children.
- The residence is jointly owned or rented, and voluntary agreement on living arrangements cannot be reached.
Such orders are also useful in high-conflict separations where the presence of both parties in the same space may lead to escalated confrontations or disputes that could otherwise be avoided.
Situations of Domestic Abuse - Domestic and Family Violence? (or Conflict)
In cases involving domestic abuse - Domestic and Family Violence?, occupation orders can work alongside or supplement family violence orders (such as Apprehended Domestic Violence Orders or non-molestation orders - Domestic Violence Orders?).
The primary consideration for the court is the welfare of any children involved and the immediate safety of the applicant.
By granting exclusive use of the home, the court can ensure that a victim of domestic violence is not forced to relocate while the alleged perpetrator remains in place.
This legal tool thus serves not only to prevent ongoing abuse but to provide a safe and stable environment for recovery and continued care for children.
How to Apply for an Occupation Order
Step-by-Step Application Process
- Seek Legal Advice : Consult with a qualified family law solicitor, such as the team at Unified Lawyers, who can assess your circumstances and determine if an occupation order is suitable.
- Prepare an Affidavit : This sworn document should outline the relationship history, the reasons for seeking the order, details of any violence or conflict, details of any risk to your children? and the current living situation.
- File the Application : Submit the relevant forms, including your affidavit, with the FCFCOA. This can typically be done online.
- Court Hearing : The matter is brought before a judge - Senior Judicial Registrar?, who will consider all the evidence. An interim order may be made if urgent protection is needed, followed by a final order after a full hearing.
What Happens After an Occupation Order Is Granted?
When the court grants an occupation order, it specifies who is allowed to remain in the property and the terms of that occupancy.
The order might :
- Prohibit the other party from entering or coming near the property.
- Specify times or conditions under which the other party can collect personal belongings.
- Include additional protections, such as contact restrictions or supervision arrangements if children are involved.
Violating an occupation order can result in serious consequences, including fines, arrest, or further legal action.
These orders are typically in force until final parenting or property orders are made, but they can also be reviewed and varied if circumstances change significantly.
Sole and Exclusive Occupancy Orders - Explained
Sole and exclusive occupancy orders are legal terms often used interchangeably to describe a situation where only one person has the right to live in the family home.
Importantly, the court does not require that person to be the legal owner or leaseholder.
The primary concern is the best interest of any children and the health, safety, and stability of the applicant.
This means that even if you are not named on the property title or lease, you can still apply for an occupation order if you can show that staying in the home is necessary for your wellbeing or that of your children.
These orders can be critical in cases involving vulnerable individuals who might otherwise feel forced to leave their only secure accommodation.
Key Misunderstandings About Occupation Orders
1. Only married couples can apply
In Australia, de facto and same-sex partners have the same standing as married couples under family law.
You don't need to be legally married to apply for an occupation order if you've shared a household and relationship.
2. It's about who owns the home
Legal ownership or leasehold is not the deciding factor. The court prioritises safety, wellbeing, and the best interests of any children involved.
This means someone without a financial stake in the home can still be granted sole occupancy.
3. It replaces property settlement
Occupation orders are interim measures and do not affect your long-term entitlements to property.
A separate property settlement process will determine who keeps what.
Occupation orders simply address immediate living arrangements for safety and stability.
4. It's permanent
These orders are usually temporary and reviewed regularly.
Courts issue them while broader legal proceedings unfold, ensuring urgent needs are met without locking anyone into a long-term arrangement prematurely.
5. You must move out if you're not on the title
Not true.
Courts often grant occupancy to individuals who are not legal owners, especially if moving would pose a risk to their safety or disrupt children's lives.
Occupancy is based on need, not paperwork.
6. The court always grants sole occupancy to mothers
This is a common misconception.
While the court does consider the primary caregiver's role, it evaluates each case on its facts.
Fathers, grandparents, or other guardians can also be granted sole occupancy if it's in the best interest of the children or necessary for their protection.
7. You have to leave immediately if ordered to
Courts typically allow a short window to vacate, unless immediate risk is proven.
This gives the departing party time to make alternative arrangements, preserving fairness and dignity during a stressful time.
Frequently Asked Questions
1. Can I get an occupation order without owning the
house?
Yes. Legal title is not a prerequisite.
Courts assess your need to stay in the home, any threats to your safety, and the best interests of any children involved.
This makes occupation orders accessible to tenants, partners in de facto relationships, and others not listed on the property title.
2. Is an occupation order the same as a restraining
order?
Not quite.
While both offer protection, a restraining order (such as an AVO - a DVO?) restricts personal contact, whereas an occupation order determines who may legally occupy the home.
In cases involving domestic violence, both types of orders can work in tandem to ensure safety.
3. Can I remove someone from my house with an occupation
order?
Yes.
If a court determines that allowing the other party to remain would jeopardise your physical or emotional safety-or that of your children-it can order that individual to vacate the premises, regardless of their ownership or tenancy rights.
4. How long does an order last?
Most occupation orders remain in effect until final property or parenting orders are issued.
However, interim orders can be extended, reviewed, or varied based on evolving circumstances.
Seeking timely legal guidance can ensure your order remains appropriate and enforceable.
5. What if children are involved?
The safety and daily stability of children are central to the court's consideration.
Orders frequently favour the parent who is the primary carer, ensuring that the children can remain in a consistent, secure environment during the legal proceedings.
6. Can both parties live in different parts of the
home?
In rare instances, shared occupancy with strict conditions may be ordered-for example, designated areas or separate entry and exit points.
This arrangement is generally temporary and considered only when no immediate alternative housing is available for either party.
How Unified Lawyers can help
An occupation order can be vital for ensuring personal safety, providing a stable home environment, and securing the wellbeing of children during or after separation.
Whether you need help applying for an order, preparing affidavits, or responding to a court hearing, our experienced family law specialists are here to guide you through the process with clarity and care.
At Unified Lawyers, we understand the urgency and sensitivity surrounding these matters. We tailor our legal strategy to your unique circumstances, drawing on extensive experience in domestic conflict, property access, and court applications.
Our team also collaborates with domestic violence support services and child welfare professionals to ensure all aspects of your situation are addressed.
If you are experiencing conflict or feel unsafe at home, don't face it alone. Get in touch with us today. Our Sydney - Gold Coast? -based family lawyers will provide the support and legal expertise you need to take decisive action and secure peace of mind.
Own Experience :
We recently assisted a client who had experienced significant domestic violence at the hands of her former partner.
The other party was the sole title holder of the family home, and he was threatening and coercively asserting that our client and her children had no legal right to remain in the property and must leave immediately.
We acted promptly to secure orders allowing our client to remain in the home with her children, ensuring their safety, stability, and continued access to school and support networks.
By seeking appropriate injunctions under the Family Law Act 1975, we were able to protect our client's rights and provide her the reassurance that she and her children were legally entitled to stay in the home.
This outcome not only upheld her legal rights but also helped create a safer and more stable environment for the family to begin rebuilding their lives.
Recourse under the Domestic & Family Violence Protection Act (Qld) - Ouster Conditions on Protection Orders (DVOs)
Made by the Queensland Magistrates Court - On the Gold Coast - this Court is the Specialist Family and Domestic Violence Court in Southport
Under the Domestic and Family Violence Protection Act 2012 (Qld), an ouster condition is a specific condition that can be included in a Protection Order or Temporary Protection Order to require the respondent (the person committing domestic violence) to leave a shared residence-even if they are the legal owner or tenant of the property.
An ouster condition is a term used to describe a court-imposed requirement that excludes the respondent from :
- The home or residence they share (or previously shared) with the aggrieved person,
- Or from any stated premises, even if they have a legal interest in it (e.g. as an owner or tenant).
It essentially removes (ousts) the respondent from the property to protect the safety and wellbeing of the aggrieved and any children.
The power to make ouster conditions comes from :
- Section 57 of the Domestic and Family Violence Protection Act 2012 (Qld), which allows a court to impose any condition it considers necessary or desirable to protect the aggrieved.
- Specifically, Section 63 empowers the court to include an Ouster Condition that prohibits the respondent from remaining at, entering or attempting to enter, or approaching within a stated distance of the premises.
The court will consider imposing an ouster condition when :
- The aggrieved and/or children are at risk of further violence or intimidation,
- There is a shared residence, and the aggrieved wants to remain safely in the home,
- There is no reasonable alternative accommodation for the aggrieved,
- The respondent has other accommodation options.
Importantly, the court can still order the ouster even if the respondent is the sole owner or tenant of the property.
We have worked with women on the Gold Coast and successfully advocated for ouster conditions to be included in Temporary Protection Orders and final Protection Orders, resulting in the removal of the perpetrator from the home and preventing them from returning.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
