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

An injunction is an order given by a court that requires a person to do or not do a particular thing.

Under the FL Act, a court can grant an injunction:

protecting a spouse, parent, child, or someone who has a parental responsibility order;

protecting a marital relationship;

relating to property;

relating to the use or occupancy of the family home;

restraining a person from entering or remaining in a house or a specified area (e.g. outside or close to the family home);

restraining a person from entering a workplace or school (ss 68B, 114(1)); or

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

Situations that may need family law injunctions include:

where children are being adversely affected by others’ behaviour (even if there is no violence);

where a spouse or partner threatens to take the children away;

where a spouse or partner is trying to adversely affect the occupancy of the family home of the other spouse, partner or children.

Which courts can hear injunctions?

The federal Family Court, the Federal Circuit Court and the state Magistrates’ Court have jurisdiction to grant injunctions under the FL Act. In practice, most injunctions are dealt with by the Family Court and Federal Circuit Court. Although the Magistrates’ Court has a limited jurisdiction in disputes over property, this does not prevent it granting injunctions depriving parties of the right to the use and occupancy of a home. This is because an injunction does not affect property interests; it only suspends enjoyment of the property.

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

Where possible, applications should be made to the Family Court or Federal Circuit Court and not ex parte (i.e. without notifying the other spouse). Often, 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 majority of injunction type orders made in relation to the personal protection of a person or their child, or both, are now made under Victorian state legislation, the Family Violence Protection Act 2008 (Vic), which provides for intervention orders to be made. These orders are made in the Magistrates’ Courts; consequently, the Family Court or the Federal Circuit Court are not commonly the first court of call in seeking this 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 FL Act, the court may:

advise the parties to obtain counselling assistance; or

adjourn the proceedings to enable the parties to undergo counselling if the court thinks 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 the FL Act 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 a warrant (ss 68C, 114AA).

A person who is arrested under either section 68C or section 114AA of the FL Act must be brought before the court within 24 hours of arrest. If they are arrested on a weekend or public holiday, they must be brought before the court within 42 hours of arrest (ss 68C(3), 114AA(7)).

For more information about injunctions, see Family violence.