A Property Recovery Order may assist you to recover personal items from the former matrimonial home in cases of actual, or a reasonable apprehension of, domestic violence.
In the unfortunate situation where a spouse is forced to abruptly leave the matrimonial home because of domestic violence, it is very possible that personal items will be left behind. These items could include clothes, photos and other personal effects. If a spouse leaves with children, it also includes personal items owned by the children.
It is not uncommon for the spouse who remains at the premises to attempt to prevent the other party from returning to collect these items.
The party who no longer resides at the premises should not attempt to recover those personal items, unless there is agreement from the other spouse to do so. Attempting to recover personal items without consent could result in the Police being called.
One way of overcoming this problem is to make an Application at a Local Court for a Property Recovery Order (“PRO”).
A PRO is made as an ancillary order to an Apprehended Domestic Violence Order (“ADVO”).
If the Magistrate grants the ADVO and PRO, then the Defendant (the spouse refusing access to the home to recover personal items) will be compelled to allow the complainant to attend the premises (usually in the presence of a Police Officer) to recover personal items subject to the Order.
It is important to note that the Magistrate will not make any orders in respect to items of which there is a dispute over ownership. As such, the orders are usually only applicable to items of clothing and other personal affects.
Substantial joint assets of which there is a dispute as to ownership need to be dealt with in Family Court proceedings.
It should also be noted that a PRO does not:
1. allow for entry into the former matrimonial home by force; or
2. confer any right to take property when the complainant does not have a legal right to possess it, even if specified in the PRO.
It is also an offence for a person to contravene a PRO or obstruct the person who is attempting to comply with the Order.
Foulsham & Geddes can assist you with obtaining a Property Recovery Order, or answer any related questions you might have. Please do not hesitate to contact us on (02) 9232 8033.