Should I Stay or Go? Do I Even Have a Choice?

During my acting as a family lawyer in Perth, I am often asked by clients “Should I stay or go?” and “What am I entitled to?” The latter question will be dealt with in a forthcoming article on property settlement and how the Family Court deals with this.

Clearly it is not for me to say whether people should stay in a relationship or not. But what I am qualified and experienced to do is to provide sound legal advice, whether you have separated or not, in relation to your rights, entitlements and potential future outcomes and obligations.

The decision to separate does not require physical separation. A separating couple can decide to separate under the same roof. There are advantages and disadvantages to separating under the same roof. Advantages include attempting to preserve the value of the net asset pool available for distribution whilst attempting to resolve financial issues (property settlement and/or spousal maintenance) and/or children issues. Disadvantages include having to live in a tense and sometimes volatile atmosphere.

However, in a situation where two people have decided to physically separate, who gets to stay in the former matrimonial home? You may think that this is dependent upon who is listed as the registered proprietor on the title to the property or is dependent upon who has been the primary carer of any children of the relationship. You may also think that if you are at least one of the registered proprietors of the home then any such decision to leave that home should require your consent…

Let me tell you about a recent experience. (Identities have been changed for obvious reasons)

Michael and his de facto partner, Sarah, recently decided to end their five year relationship. Sarah had moved into Michael’s home about 5 years ago, with Michael being the sole registered proprietor of this property for the last 10 years. They had no children together.

Michael returned home from shopping one Saturday morning to find a police car on his driveway. He was then served with a Violence Retraining Order (“VRO”) that Sarah had unilaterally applied for in the local Magistrates Court the day before.

The VRO included a provision that Michael was not to enter, remain upon or loiter near his own home or be within a hundred meters of the nearest external boundary of his own home.

Michael only had 2 minutes to collect his personal items before having to leave the property.

You can imagine the distress this caused.

Michael had limited funds and was only just managing to afford his monthly mortgage repayments. Now he had to find additional money from somewhere to pay for a hotel room because he had no family or friends living in Australia (Michael had emigrated to Australia from Croatia).

Michael was forced to file an objection to the VRO, which resulted in a hearing over a month later.

In the meantime, we lodged an application to vary or cancel the VRO, as Michael could not afford to pay for hotel accommodation, in addition to his mortgage payments. Sarah’s family, including adult children, parents and siblings, all lived in nearby suburbs.

After lengthy legal submissions and strong resistance at Court, the Magistrate decided to allow Michael to return to his home because he was persuaded that the restraints imposed by the VRO were causing Michael serious and unnecessary hardship. The balance of the restraints contained within the interim VRO were to be dealt with at a final hearing (after Michael, Sarah and their witnesses had given evidence and been cross-examined). Ultimately, the VRO was dismissed in its entirety.

The lesson to be learned from this is that you may not even have a choice as to whether you should stay or go. You could be in Michael’s position and be on the receiving end of a VRO made for the benefit of your ex -partner imposing restraints on your lawful activities and on your behaviour. You could face the distress of having to leave your children too, as the usual terms of a VRO do not allow communication with your children unless you already have a court order made in the Family Court, and there is a requirement imposed by the Family Court for compulsory mediation prior to being able to apply for a parenting order (save in urgent circumstances). The issue of how, when and what to apply for (in relation to parenting orders) will also be dealt with in a forthcoming article.

I come across lots of people in Family Law proceedings who genuinely need the protection of a VRO. A VRO is intended to protect victims of violence (whether emotional, physical and/or sexual abuse). The Magistrates Court may impose such restraints on the lawful activities and behaviour of the person as the Court considers appropriate.

However, the Court will usually make an interim VRO solely based upon the allegations of the alleged victim of abuse or violence. Whilst in many cases this is of fundamental importance to a genuine victim of abuse, it can easily be abused by vindictive and dishonest ex- partners.

You should immediately seek competent legal advice if you find yourself in a situation where you are asking yourself “Should I stay or go?”. Speak to an experienced family lawyer in Perth at FLSD today.

By |2018-12-14T11:17:31+00:00June 2nd, 2014|Blog|0 Comments

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