In most cases “separation” occurs when one person moves out of the family home.
Usually the person who moves out doesn’t expect it to be the last time they ever set foot in the place they called home. But often it is when a family violence order is in place.
But what if they want to come back just one last time?
In the recent case of Brewer & Brewer  FedCFamC2F 804, the Federal Circuit and Family Court considered whether the Husband could return to the former family home, which he had lived in for 28 years, to ‘say goodbye’ to it.
The Husband and his former wife had come to an agreement about dividing all their assets and liabilities on a final basis but they couldn’t agree on whether the Husband could return to the property one last time before it got sold.
Another court had made a family violence order restraining the Husband from entering the home. Notwithstanding that, he sought an order from the Federal Circuit and Family Court allowing him to enter the former family home. He gave evidence that he could not mentally move on without being afforded that opportunity.
The Court refused to make the order sought by the Husband, notwithstanding that it had powers to make orders of that kind. In reaching that decision, the Court found that:
- The order sought was not necessary to determine or aid the finalisation of the division of the parties’ assets and liabilities following their separation;
- The order sought would have been inconsistent with the family violence order; and
- Making the order would potentially be an abuse of process and would detract from the Court’s function.
The key point was that there must be a legitimate purpose to exercising the power to make orders enabling a party to re-enter the home and that that must be a purpose logically and reasonably connected to what property settlement orders should be made. Accordingly, it’s likely that the Court’s decision would have been the same even if the family violence order had contained an exception for orders made by the Federal Circuit and Family Court, which they often do.
That said, another way for the Husband to go about it in the ACT might have been to apply for an amendment to the family violence order.
It is apparent from the Court’s judgment that the outcome probably would have been different if the Husband had sought access to the family home in order to identify whether he had forgotten about any items at the property. This was because the consent he had given to orders dividing up the parties’ assets and liabilities on a final basis, and thereby giving up his right to make further claims, may have been vitiated if that were the case. But evidence given by the Husband and instructions conveyed by his barrister to the Court confirmed that the purpose was solely emotional.
If you and your former spouse are in dispute about one of you being able to re-enter to the former family home, get legal advice early – especially before consenting to any family violence or property settlement orders.
Article By: Nicholas Smith
Nick excels at complex family law matters. He is skilled at distilling dense information and difficult concepts into simple language. Clients who find the court process overwhelming often report feeling at ease with Nick.
This skill is also valuable when Nick appears in court. He regularly does so, including at contested interim hearings where a barrister would otherwise be required.
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