Selwood and Selwood (No 3)

In *Selwood & Selwood (No. 3)*, the wife sought orders from the Family Court of Australia for the husband to vacate the former matrimonial home and for her to have sole use and occupation of the property. The wife proposed to collect rent from other investment properties to cover the outgoings and mortgage of the former matrimonial home. The husband opposed this application.

The court was required to determine whether to exercise its discretion under section 114 of the *Family Law Act 1975* (Cth) to grant the wife's interim application. This involved considering the balance of hardship, the needs of the parties and their children, and whether the wife had discharged the onus of establishing a necessary basis for the court to exercise its discretion. The court also had to consider the existing interim orders, the history of the parties' separation since June 2010, and the impact of any move on the parties' two children, aged 13 and 11, particularly in light of one child's recent surgery.

Justice Dawe noted that the discretion under section 114 is not to be exercised lightly and requires consideration of the authorities, including *Scholtz & Scholtz* [2002] FamCA 59. The court found that while there were financial issues to be determined regarding the wife's accommodation costs, her finances were not demonstrably preventing her from obtaining appropriate accommodation. The husband argued that he had maintained the property and mortgage, and that requiring him to move would disrupt the children's care. Balancing these factors on an interim basis, the court was not satisfied that the wife had established, on the necessary balance of probabilities, that it was proper, reasonable, and just to make the order requiring the husband to vacate.

Consequently, the wife's application was dismissed. The court also noted that other matters raised in the application had been dealt with, with the exception of costs.