HUSBAND AND WIFE FIGHT OVER THE OCCUPATION OF THE NEWLY COMPLETED HOUSE
Courtney & Courtney [2020] FCCA 3296 (23 November 2020)
This case a competing application for the sole use and occupation of the newly completed house on a farm property owned by the parties.
Facts:
Both parties are seeking to have sole use and occupation of a property at A Road, Suburb B owned by them on which previously sat the former matrimonial home (“the farm”). The former matrimonial home was demolished and building works for a new home commenced on the farm this year. It was during the time that building of the new house commenced that the parties separated.
When the original former matrimonial home on the farm was demolished, the parties and their three children, aged 11, 12 and 22, moved into an investment property owned by the parties in Suburb D (“the investment property”).
On August 2020, the Husband moved a caravan onto the farm which he apparently then moved in to.
The new four‑bedroom house on the farm is now close to completion and both parties are seeking that they be afforded the opportunity of sole use and occupation of the new home.
In support of his application to have sole use and occupation of the new home on the farm, the Husband argues that there is a status quo that has been in place since August 2020 that sees him living on the farm and the Wife and the children living in the investment property. It is therefore argued that there are no compelling reasons to change that arrangement. In support of that contention, it is submitted on behalf of the Husband that he is better placed to manage the maintenance of the farm and the livestock currently on it.
Counsel on behalf of the Wife submits that there is no status quo. Neither party is living in the property in dispute. The Husband is in a caravan that, it is submitted, was unilaterally moved to the farm by the Husband when he took advantage of the intervention order process.
The Wife and the children are currently living in the investment property and it is submitted that the new home on the farm will better meet the needs of her and the children on an interim basis. The investment property has only three bedrooms the parties’ eldest child, Ms. E Courtney is apparently sleeping in the garage. The new house on the farm has four bedrooms.
Issue: Who should have sole use and occupation over the house?
Law:
Analysis:
The court is not persuaded by the Husband’s argument that there is an existing status quo that sees him living on the property in dispute, I will look at the respective positions of the parties. This will include considering the needs of the children and make a decision on the balance of convenience as to what should be the appropriate arrangements in relation to who has the occupation of this property, pending this matter being resolved on a final basis.
The court is in agreement with the submissions of the Wife that her needs, and more particularly the needs of the parties' three children, are best met if she and the children have the opportunity of living in a brand new home. Whether that be for an interim period or on a longer term basis will be determined in due course.
Conclusion: Court orders that the wife and children should have sole use and occupation of the completed house.
