In Australia, when a relationship breaks down and one spouse experiences verbal abuse, they may apply to the Federal Circuit and Family Court of Australia (FCFCOA) for an order granting them exclusive occupancy of the family home. This order allows one spouse to remain in the home while requiring the other to leave.
The Family Law Act 1975 (Cth) provides the framework for these applications, particularly under Section 114(1), which allows the court to make injunctions, including exclusive occupation orders. While verbal abuse does not involve physical violence, courts acknowledge its severe emotional and psychological effects and may grant relief if it creates an unsafe or untenable living environment.

1. What Is an Exclusive Occupancy Order?
An exclusive occupancy order is a court directive that permits one party to remain in the family home while preventing the other from entering or residing there. It does not alter property ownership but regulates who can live in the home during family law proceedings.
The court considers these orders serious and only grants them in cases where shared occupation is impossible due to abuse, safety concerns, or severe conflict.

2. Legal Basis Under Australian Law
Under Section 114(1) of the Family Law Act 1975, courts can issue an injunction, including:
Exclusive Occupancy Orders – Granting one party the sole right to occupy the home.
Exclusion Orders – Preventing the other spouse from entering or remaining on the property.
Restraining Orders – Additional restrictions if there is a pattern of abuse or harassment.

While physical violence is more straightforward to prove, verbal abuse can also justify an order if it leads to intimidation, coercive control, or emotional harm that makes cohabitation unsafe.

The court will weigh whether the verbal abuse:
Creates a hostile, oppressive, or unbearable living situation.

Affects the mental and emotional health of the victim.
Harms children if they are present in the home.
Restricts the victim’s freedom or causes distress.

3. Process for Applying for Exclusive Use of the Home
Step 1: Gather Evidence of Verbal Abuse
To support an application, the affected spouse must provide evidence showing why shared occupation is not viable. This may include:

• Affidavit (Sworn Statement) – A personal statement detailing specific incidents of verbal abuse, including dates, frequency, and impact on mental well-being.
• Text Messages, Emails, or Audio/Video Recordings – Any digital proof showing threats, insults, or coercion.
• Witness Statements – Testimonies from family members, friends, or professionals (e.g., therapists) who have witnessed the abuse.
• Medical or Psychological Reports – Evidence of stress, anxiety, or depression linked to the abusive environment.
• Police Reports (if applicable) – If law enforcement has been involved due to threats, domestic disputes, or harassment.

Even if the abuse is not physical, coercive control, intimidation, or psychological harm can be grounds for an exclusive occupancy order.

Step 2: File an Application in the Family Court
To apply for exclusive use of the home, the affected party must:

1. File an Initiating Application with the Federal Circuit and Family Court of Australia (FCFCOA).

2. Attach an Affidavit detailing the abuse and why cohabitation is untenable.

3. Provide supporting documents, including any relevant police reports, text messages, or medical evidence.

4. Notify the other party, who will have a chance to respond.

If there is immediate danger, an urgent injunction or a Family Violence Order (FVO) may be sought for temporary protection.

Step 3: Attend the Court Hearing
The court will schedule a hearing, where both parties can present their arguments. The judge will evaluate:

• The nature and severity of the verbal abuse.
• The impact on the applicant’s mental health and daily life.
• Whether there are children involved and their welfare.
• Alternative housing options for the excluded spouse.
• Financial considerations, including mortgage or rent obligations.

Step 4: Court Decision and Order
If the court grants an exclusive occupancy order, it may include:

• Immediate removal of the abusive spouse from the property.
• Restraining conditions, preventing further abuse or harassment.
• Police enforcement powers, allowing law enforcement to intervene if the order is breached.

In some cases, the court may also review financial contributions to determine if the excluded spouse should continue paying rent or mortgage expenses.

4. What the Court Considers in Making a Decision
The FCFCOA evaluates several key factors:

1. The Well-Being of the Applicant – Whether verbal abuse has caused emotional distress or mental harm.

2. Impact on Children – The court prioritises the safety and stability of children in the home.

3. Severity of the Abuse – Whether the verbal abuse involves threats, coercion, or manipulation.

4. Financial and Housing Considerations – Whether the excluded spouse has the means to find alternative accommodation.

5. Existing Domestic Violence Orders (DVOs) – If a Family Violence Intervention Order (FVIO) or Apprehended Domestic Violence Order (ADVO) has been issued, the court will likely grant exclusive occupancy.

The court aims to balance the interests of both parties, but the safety and well-being of the affected spouse and children are the primary considerations.

5. What Happens After an Exclusive Occupancy Order is Granted?

The abusive spouse must leave the home within the timeframe set by the court. If they fail to comply, police intervention may be requested.

The order remains in place until further court decisions on property settlement, divorce, or long-term arrangements.
If verbal abuse continues, additional domestic violence orders or injunctions may be sought.

If the affected spouse wishes to extend the order, they must apply for a renewal before it expires, providing updated evidence if necessary.

6. Alternative Legal Protections in Australia
If verbal abuse escalates to coercion, threats, or harassment, additional legal options include:

• Family Violence Orders (FVOs) – Court orders preventing the abuser from approaching or contacting the victim.

Apprehended Domestic Violence Orders (ADVOs) (NSW) – Issued by police to prevent ongoing abuse.

Family Law Injunctions (Section 114 of the Family Law Act 1975) – Can be used to impose restraining conditions alongside exclusive occupancy.

Seeking legal advice from a family lawyer can help determine the best approach for obtaining protection under Australian family law.

Conclusion
Verbal abuse in a relationship can have serious emotional and psychological effects, and Australian courts recognise this as a legitimate basis for granting exclusive use of the family home. Under Section 114(1) of the Family Law Act 1975, a spouse experiencing intimidation, threats, or coercive control may apply for an exclusive occupancy order to secure their living environment.

To succeed in an application, strong evidence is essential, and urgent relief may be available if the abuse is escalating. Seeking legal assistance is recommended to navigate the court process and ensure that safety and well-being are prioritised.