carrying out the balance of harm test it is the
courts duty to consider and balance the level of
harm likely to be caused to the applicant, the respondent
and any relevant children, if the order was or
Section 33(7) of the Family Law Act 1996
states that the court must grant an occupation order if
they believe that the applicant or any relevant child is
likely to suffer significant harm attributable to the
conduct of the respondent if an order is not made.
Exceptions to this rule occur when the
court believe that the respondent or child are likely to
suffer significant harm or greater harm than the
applicant if the order is made. In cases that involve a
child, the childs wellbeing is always the
courts paramount consideration.
The core criteria test
The core criteria test takes into
consideration the applicants relationship to the
respondent and entitlement to the property.
If the applicant is entitled to the
property, then according to Section 33(6) of the Family
Law Act the court must then consider the following core
- The housing needs and resources of
each of the parties and of any relevant child.
- The financial resources of each
- The likely effect of any order, or
of any decision by the court not to exercise its
powers, on the health, safety or well-being of
the parties and of any relevant child.
- The conduct of the parties in
relation to each other.
If the applicant is not entitled to the
property then some additional factors will be taken into
consideration, including, whether any children are
involved, the length of the relationship, and the length
of time since the relationship came to an end.