Following the breakdown of a relationship, one party usually leaves the home and goes to live elsewhere. The question is who should that be? 

In most cases where there are children, and the mother has been their main care giver during the relationship, logic would seem to indicate that it is she and the children who should remain in the house. However, logic, as well as reasonableness, consideration and other fine emotions, tend to be one of the first casualties of separation.

The test of convenience

In the early days of the operation of the Family Law Act, the Court often applied a test of “convenience”, that is, taking all the facts into consideration, was it more convenient for the male or the female partner to stay in the house?  

Mothers argued that it was more convenient for them to stay, as the children went to school in the area, there were neighbours, friends and often family in the near vicinity and, anyway, the mother could not afford to go out and rent accommodation for she and the children. 

That was a hard argument for fathers to counter, unless they were the primary carers of the children. Therefore, applications brought before the Family Courts, to exclude the (usually) father from the house were often successful. He would then, typically, rent or stay with mum and dad pending a property settlement between he and his former partner.

Both can stay - unless there are other issues

That practice fell into disuse and the Family Courts more recently have taken the view that they will not order one party to leave the home if both want to stay there, unless there has been family violence or some other relevant facts. 

For example, if there was an investment property which was vacant and into which the father could move, the Court may well order him to do so. If one or more of the children were suffering from some psychological problem and there was professional evidence that the problem would be exacerbated if the father (assuming that the mother was the primary care giver) stayed in the home, then he may be required to leave.

Protection from domestic violence

However, the reality is that the Family Courts now have less to do with deciding who stays in the house after separation – it is the State Magistrates Courts applying the Victorian Family Violence Protection Act 2008, that decide who will go. If the (typically) female partner makes application to a State Magistrates Court for an Intervention Order (including an order that her partner be excluded from the home because of domestic violence), she has a good chance of success. 

That will depend upon the level of violence and whether the Court considers that a simpler order, that the partner not commit family violence against the applicant, while allowing them both to stay in the home, is sufficient protection. 

If the Court decides that it is not, they can order that the (again, usually the male) partner leave the premises. That is a fairly brutal exercise. The applicant makes an application to the Court “ex-parte”, that is, without the partner being notified. The Court will usually hear the matter on the day that the applicant goes to the Court to fill out the necessary documents. 

If the Magistrate decides to exclude the partner from the home, the police will attend at the premises as soon as possible (usually that day or within a day or two of the order being made). They give the partner a few minutes to collect their clothes and toiletries and they escort them off the property. It is up to the partner to find their own accommodation.

Consequences of excluding partners from the home

While the State Magistrates Court procedure for excluding partners from the home is very efficient and works well for the applicant, it can have very serious consequences down the track. 

The Courts often include children in the orders preventing the partner from having any contact with the children either until the matter is finalised in the State Magistrates Court or they make application to a Family Court for parenting orders. 

While Intervention Order cases go back to the State Magistrates Court within a couple of weeks of the ex-parte order being made, the reality is that a final hearing is usually months away and the partner is denied the opportunity to put their case for many months. 

That is, of course, a breach of one of the fundamentals that run through the justice system that we have inherited from Britain, that is, that a person is innocent until proven guilty and everyone has the right to be heard in Court – “justice delayed is justice denied”. 

However, because of the real, pervading social problem of domestic violence, the state Parliaments in Australia have adopted legislation which puts the protection of the victim before the rights of the perpetrator.

Adopt a rational process

Of course, all of this can be avoided by separating parties adopting a rational approach to the situation and, often with the assistance of mediation, agreeing on who is to stay in the home, for how long and, if one party is to leave, arranging a smooth transition, rather than being subjected to the draconian process of the state Family Violence legislation.