In Summary
In Mubiru & Mubiru [2026] FedCFamC1F 456 the court refused to exclude a husband from the home he owned, even though the separated parties had lived under one roof for 14 months, both held ADVOs against the other and police had attended the property several times.
Conflict alone does not justify an exclusive occupation order. The applicant must show it is no longer reasonable, sensible or practicable for both parties to stay, with evidence about alternative accommodation, finances, the children’s care and who is responsible for the conflict.
A spouse who does not own the home has no interest in it simply because of the marriage, and can stay only with the owner’s consent or under a court injunction. That makes the choice of orders sought at the interim stage critical.
On 7 July 2026, Justice Harper of the Federal Circuit and Family Court of Australia dismissed a wife’s application to exclude her husband from the home where they had lived, separated under one roof, for more than a year, despite apprehended domestic violence orders running both ways and repeated police attendances. Mubiru & Mubiru [2026] FedCFamC1F 456 shows that conflict in the home, even serious conflict, will not on its own persuade a court to put an owner out of their own property. Success turns on evidence about accommodation, money, the children’s care and who is responsible, and here that evidence was thin.
What happened in Mubiru & Mubiru?
The parties married in 2012 and have two children, born in 2013 and 2016. They separated on 4 May 2025 but continued to live together in a Sydney home owned solely by the husband. The wife began property proceedings in August 2025 and in May 2026 applied for exclusive occupation. The husband sought dismissal or, failing that, exclusive occupation for himself with an interim payment of $30,000 to the wife.
Each party held an ADVO against the other, the order against the husband also protecting the children, the wife faced criminal charges for property damage, and each accused the other of angry and abusive conduct. Meanwhile the wife kept working around 15 hours a week in the husband’s business, which paid the mortgage, school fees and household expenses.
How the court approaches exclusive occupation
The power sits in section 114(1)(f) of the Family Law Act 1975, which lets the court grant an injunction about the use or occupancy of the matrimonial home. Harper J’s summary of the authorities at paragraphs 14 to 25 is a clear recent statement of how that power works, drawing on the Full Court in Elliot v Hopkins (No 2).
Excluding a spouse from their home is a grave step reserved for restricted and exceptional circumstances, and tension short of unacceptable conduct is unlikely to be enough. The court does not need to find the situation intolerable; the question is whether it is no longer reasonable, sensible or practicable to expect both parties to keep living together, and whether exclusion would be fair, just and reasonable in all the circumstances. Relevant factors include each party’s means and access to other accommodation, the needs and welfare of the children, the hardship an order would cause either side, and any conduct said to justify exclusion. The court decides first whether any order is necessary, then who should have the home.
Ownership mattered as well. The home was solely the husband’s, so the wife had no interest in it by virtue of the marriage and her occupation was lawful only while he consented. She had to show sufficient reason to interfere with his right to possess his own property.
Why the application failed
Harper J accepted there was conflict and that the children had witnessed it, and observed that it might be thought the parents had behaved as “self-absorbed, entitled individuals with little appropriate focus upon their responsibilities as parents”, while expressing no concluded view. At an interlocutory hearing on affidavits alone, without cross-examination, the court could not decide who was responsible or how serious the tension really was.
The wife had not pointed to any recent incident that made exclusion suddenly urgent. Both parties said they could not afford to rehouse, and although the husband was plainly better off, that alone did not establish he could fund a second home while maintaining the business and the property for the wife and children.
The decisive gap concerned the children. Neither party sought urgent interim parenting orders on the basis that the children were at risk, and neither gave any real evidence of how parenting would work if one of them moved out. The wife said nothing about how the children would see their father from separate accommodation. That absence weighed against the order, and both applications were dismissed.
What this means if you are separated under one roof
Living with a former partner after separation is common while property matters are resolved. Changing that through the court takes current evidence that the arrangement has become unworkable, together with a credible picture of where each party would live, what it would cost and how the children would be cared for across two homes. If you do not own the home, your right to stay depends on the owner’s consent, and an injunction preserving your occupation may matter as much as one ending theirs.
If you are separated but still living under one roof and need advice about exclusive occupation, parenting arrangements or your position in the home, contact Espino Law to arrange a consultation with our separation lawyers in Sydney and the Macarthur region.
FAQs
What is an exclusive occupation order?
It is an injunction under section 114(1)(f) of the Family Law Act that allows one party to live in the former matrimonial home to the exclusion of the other. It governs who may occupy the property for the time being and does not alter who owns it, which remains a matter for the final property settlement.
Do I need to prove family violence to get one?
Yes. Section 4AB defines family violence as behaviour that coerces or controls a family member or causes them to be fearful. Threats, fear-based rules, manipulation of a person’s sense of reality and isolation from family can all qualify, whether or not any physical assault occurs.
Will it count against me that I stayed or went along with the behaviour at the time?
Family violence is highly relevant, and in cases of intense conflict coupled with assaults the court may need little persuasion. The legal test, though, is whether it is no longer reasonable, sensible or practicable for both parties to keep living together. In Mubiru & Mubiru, ADVOs on both sides and unresolved allegations were not enough at an interim stage because the court could not determine responsibility or the true level of conflict.
Does it matter whose name the house is in?
Yes, particularly before a final property order is made. A spouse who does not own the home has no interest in it simply because of the marriage, and can stay only with the owner’s consent or under an injunction. The final property settlement may change the ownership position entirely, but the interim position turns on title.
What evidence do I need for an exclusive occupation application?
Evidence of recent incidents and why the arrangement has become unworkable now, details of alternative accommodation available to each party and what it would cost, complete financial statements, a clear proposal for where the children would live and how they would spend time with each parent, and evidence of the hardship each party would face if the order were made or refused.
Can I be forced out of a home I own?
The court has the power to exclude an owner, and has done so where the circumstances warrant it. Because the step is so serious, the court will only make the order in restricted and exceptional circumstances, and it requires compelling reasons where the owner is not clearly the party responsible for the breakdown or the conflict.
Glossary
Exclusive occupation order: An injunction giving one party the right to live in the former matrimonial home to the exclusion of the other, without altering ownership.
Section 114 injunction: An order under section 114 of the Family Law Act 1975 that the court considers proper in a matrimonial cause, including injunctions about the use or occupancy of the matrimonial home.
Interlocutory hearing: A hearing that deals with an interim issue before the final trial, usually decided on affidavit evidence without cross-examination, which limits the factual findings a judge can make.
Separated under one roof: The situation where a couple has ended their relationship but continues to live in the same home, often for financial or parenting reasons.
ADVO: An Apprehended Domestic Violence Order made by a NSW court to protect a person from a family member. In Mubiru & Mubiru each party held an ADVO against the other.
Balance of convenience: A comparison of the hardship each party would suffer if an interim order were made or refused. In exclusive occupation cases it often carries practical weight even though it is not the sole test.
Matrimonial home: The home in which the parties lived together during the marriage, whether owned by one or both of them.
Interim property settlement: A payment or transfer ordered before the final hearing, typically to meet a party’s immediate needs. The husband in Mubiru & Mubiru offered $30,000 to the wife if he were granted exclusive occupation.
