In most cases, if immediate protection is required, it is advisable to seek an intervention order under the Family Violence Protection Act 2008 (Vic) (“FVP Act”). In some cases, however, where there are other family law issues involved, it may be sufficient to apply for an injunction (also known as a restraining order) under sections 68B or 114 of the Family Law Act 1975 (Cth) (“FL Act”).
An injunction is available to people who:
• are married;
• are separated or divorced;
• are in a de facto relationship (heterosexual or same-sex);
• have children;
• do not have children.
Unlike intervention orders under the FVP Act, injunctions cannot be obtained under the FL Act against other family members or relatives (e.g. siblings, uncles, in-laws) or people in an intimate relationship (unless they have a child together).
In this section, “husband” means legal or de facto husband and “wife” is legal or de facto wife. “De facto relationship” is defined in the FL Act (s 4AA).
While injunctions cover many situations, they can stop a person from harassing, assaulting or molesting another person, and they can stop a person from entering particular premises. For example, an injunction can direct a husband to stay away from both his wife and the former matrimonial home.
Where the situation at home is difficult and children are being adversely affected, a person can obtain an injunction for the sole use and exclusive occupancy of the matrimonial home, irrespective of who owns the property. There does not need to be physical violence. The court must consider the atmosphere at home, the means and needs of both parties and any children, and the hardship to either person if one is forced to leave the home.
Such injunctions are difficult to obtain. Even when granted, if the matrimonial home is jointly owned, for example, by the husband and wife, there will have to be a property settlement in the future. If the parties are married, the property settlement is determined under the FL Act. If they are not married, the property division will be determined either under the FL Act or state law depending on the facts. (See “Property” in Marriage and divorce, and Same-sex and de facto couples and families.)
If there is no physical violence or psychological abuse, it may not be possible for one spouse to evict the other. The parties can then separate and remain under one roof, or one party may have to leave the home and seek a final property settlement. The party who leaves does not forfeit legal entitlement to a property settlement simply by leaving.
Applications for injunctions are filed in the Family Court (www.familycourt.gov.au); or the Federal Circuit Court (www.federalcircuitcourt.gov.au); or the Magistrates’ Court (www.magistratescourt.vic.gov.au).
The Family Court only sits in Melbourne and mostly only hears complex cases. The Federal Circuit Court and the Magistrates’ Court sit in various CBD, suburban, regional and rural locations.
Application forms for injunctions can be obtained from the shared registry of the Family Court and Federal Circuit Court, or from a local Magistrates’ Court. Applications have a filing fee for which a reduction can be obtained in cases of Centrelink benefits or financial hardship.
The hearing date for an injunction depends on the amount of work the court has before it. When the case is urgent, the court tries to hear the matter within a few days of the application being filed. Otherwise, it may be eight to ten weeks from the date of filing the application before the case can be heard.
In most cases, applications for injunctions will only be heard by the court after the respondent has been served with the application and the affidavit. Unlike applications for intervention orders under state law, police are not involved with applications for injunctions and do not effect service. That must be done by a third party, usually a paid process server.
In urgent cases, applications for injunctions may be heard ex parte (i.e. without the respondent being present). The court can make an ex parte order in favour of the applicant against the respondent until a further order is made or until a specified time. Rules of the court specify the circumstances and evidence required when seeking an ex parte order.
The court is usually reluctant to hear an ex parte application for an injunction when a wife seeks an order directing the husband to vacate the matrimonial home. The court is more likely to hear an ex parte application for an injunction to restrain a person from intimidating or assaulting another person.
If the wife needs an ex parte or an urgent interim injunction, she must file an application seeking interim orders, together with an affidavit setting out the reasons for seeking an injunction. She should support the allegations by affidavits from other evidence if available (e.g. from eye witnesses to violence, witnesses to her physical condition, or medical evidence by a doctor). If the wife is only seeking final orders, she need only file the appropriate application and no other supporting material, unless the application is contested.
If ex parte orders are sought, the documents filed will be referred to the registrar of the Magistrates’ Court or a registrar of the Family Court or Federal Circuit Court. The registrar will recommend whether or not the ex parte application will proceed to be heard before a magistrate or judge. This recommendation operates as a clearing house to ensure the courts do not get cluttered with applications that are not urgent.
Even if the court refuses to grant the injunction ex parte it may grant a speedy hearing, subject to service upon the husband. It usually takes weeks before the application is heard, so it is worth pursuing promptly.
If protection is sought urgently, an intervention order is usually the better option. It is advisable to talk to a lawyer about which course of action to take (see Legal services that can help).
Police can not apply for injunctions under the FL Act. The person who has experienced the violence must apply – with or without a lawyer.
Breaching or contravening a FL Act injunction is not a criminal offence. Police do not institute breach or contempt proceedings. The person who has experienced the violence has to return to court to do so. In this regard, an injunction is again far less effective than an intervention order.
The punishment for contravening a FL Act injunction can include a fine and/or imprisonment. A person who persistently breaches a FL Act injunction may be liable for the charge of contempt.
As with intervention orders under state law, an automatic power of arrest is attached to all FL Act injunctions that provide for the personal protection of a person. The power of arrest is valid for the duration of the injunction. The power of arrest only attaches to injunctions that expressly refer to the “personal protection” of a party. This will include an order for sole use and exclusive occupancy or an order restraining entry to or remaining upon specified premises, but only if that order specifically uses the words “personal protection”.
This power authorises a state or federal police officer to arrest the respondent without warrant if that officer reasonably believes that the respondent has breached an injunction by causing or threatening to cause bodily harm or by harassing or molesting or stalking the protected person. In reality, the state police often refuse to arrest or to enforce injunctions under the FL Act and defer to federal police.
The FL Act also specifies procedures following the arrest and conditions for keeping a person in custody.
As the FL Act is federal law, a FL Act injunction is portable and is automatically valid in all parts of Australia (but not overseas) unless discharged or varied by a court exercising jurisdiction under the FL Act. Unlike a FVP Act intervention order, a FL Act injunction operates indefinitely unless the court prescribes a set period of time (this is rare).