Injunctions

 

Injunctions are orders given by a court requiring a party to refrain from performing certain actions. Injunctions are legally binding and consequences apply for breaching an injunction, including fines, bonds and community service orders or arrest.

Types of injunctions

Injunctions are orders given by a court requiring a party to refrain from performing an action. The court can grant an order or injunction:

1 for the personal protection of a spouse, parent, child, or someone who has a parental responsibility order in relation to a child;

2 for the protection of the marital relationship;

3 in relation to the property of a party;

4 relating to the use or occupancy of the former matrimonial or family home;

5 to restrain a party from entering or remaining in the home or entering or remaining in a specified area, i.e. outside or in the vicinity of the home;

6 restraining a party from entering a place of work or place of education of a child (ss 68B, 114(1) FLA); or

7 relieving a party to the marriage from any obligation to perform marital services or to render conjugal rights (s 114(2)).

It should be noted that injunction proceedings may be commenced even though there is no actual violence, but the children are being adversely affected by the behaviour. Other situations which may require injunction proceedings are when a spouse or partner threatens to take the children away, or wishes to deal with the home so as to adversely affect its occupancy by the other spouse, partner or children.

Which court?

The Family Court, the Federal Circuit Court and the state Magistrates’ Courts have jurisdiction to grant injunctions pursuant to the FLA. In practice, most injunctions are dealt with by the Family Court and Federal Circuit Court. Although state Magistrates’ Courts have a limited jurisdiction in disputes over property, this does not prevent them granting an injunction depriving a party of the right to the use and occupancy of the home. This is so because an injunction does not affect property interests. It is only an order suspending enjoyment of the property.

In very urgent matters, a state Magistrates’ Court may be the logical starting point, particularly in country areas. The only disadvantage is that many magistrates simply do not like handling family law matters.

Where possible, applications should be made to the Family Court or Federal Circuit Court and in preference, not ex parte (i.e. without notifying the other spouse). It is often found in practice that once the spouse has been served with the documents he or she seeks legal advice and “sees the writing on the wall”. Settlement is then more likely to be achieved and with less acrimony, than is the case when court orders are made without their knowledge.

In practise, the great majority of injunction type orders made in relation to the personal protection of a person or their child, or both are now made pursuant to the Victorian State legislation Family Violence Protection Act 2008, which provides for Intervention Orders to be made. These orders are made in the State Magistrates’ Courts and consequently the Family Court or the Federal Circuit Court are not commonly the first court of call in seeking this form of legal remedy.

Urgent applications

In case of urgency, a court may make an ex parte (i.e. without notice to the other party) order for an injunction. Unless the court orders otherwise, the application should be in writing and in accordance with Rule 5.3 of the Family Law Rules 2004 (Cth) (“Family Law Rules”). In cases of extreme urgency, the court may hear oral applications. An ex parte order operates only until a specified time or until a further court order has been made. (For more information, see Family violence.)

Counselling

When a court makes an order or grants an injunction under sections 68B or 114 of FLA, the court may:

1 advise the parties to obtain counselling assistance; or

2 adjourn the proceedings to enable the parties to undergo counselling if the court is of the opinion that counselling may improve the relationship of the parties to each other and to any child.

Failure to comply with such advice or direction from the court does not constitute contempt of court.

Double jeopardy

Where an act or omission referred to in section 112AM of FLA is an offence against any other law, the person committing the offence may be prosecuted and convicted under that law, but nothing in this section renders any person liable to be punished twice for the same offence (e.g. disobeying an injunction by assaulting a wife).

Procedure for injunctions

Proceedings are instituted in the same way as for ancillary matters. SeeService of documents”, and “Parenting orders” in Parental responsibilities and child support.

Powers of arrest

A police officer who believes on reasonable grounds that an injunction for the personal protection of a person (adult or child) has been breached may arrest the respondent without warrant (ss 68C, 114AA). A person who is arrested under either of these sections must be brought before the court within 24 hours of arrest, or on a weekend or public holiday within 42 hours of arrest (ss 68C(3), 114AA(7)). (For further information about injunctions, see Family violence.)