The Law Handbook 2024

Chapter 4.1: Marriage and divorce 261 Where possible, applications should be made to FCFCOA and not ex parte (i.e. without notifying the other spouse). (See ‘Urgent applications’, below.) 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 practice, 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 family violence legislation, which provides for intervention orders to be made. These orders are made in Magistrates’ Courts; consequently, FCFCOA is no longer 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 the court’s 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 Chapter 4.4: Family violence.) Counselling When a court makes an order or grants an injunction, the court may either: • advise the parties to obtain counselling assistance; • 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. See ‘Service of documents’, above, and ‘Parenting orders’ in Chapter 4.2: 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. 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. For more information about injunctions, see Chapter 4.4: Family violence. Intervening parties Who can intervene? Section 91 of the FL Act empowers the Australian Attorney-General to intervene: • when requested to do so by a court; or • when an intervention is in the public interest; or • in proceedings relating to children. In an intervention, the Attorney-General has all the rights, duties and liabilities of a party. It is extremely rare for the Attorney-General to intervene in family law proceedings. In any proceedings that may affect a child’s welfare, the court may ask a child welfare officer to intervene; this officer then becomes a party to the proceedings (s 91B). Other people with an interest in family law proceedings (e.g. grandparents) can apply to the court to become a party to the proceedings (s 92).