The Law Handbook 2024

Chapter 4.4: Family violence 301 personal safety intervention order on the balance of probabilities for ‘stalking’ (defined in s 10 PSIOAct). In such cases, the affected person/applicant and the respondent do not need to be family members. Stalking is less common in family violence situations; it is more common between neighbours, co-tenants, boarders, lodgers, or acquaintances. The PSIO Act also covers cyber-stalking. In addition, stalking is a separate criminal offence under section 21A of the Crimes Act 1958 (Vic). Injunctions under the Family Law Act In most cases, if immediate protection is required, it is advisable to contact police and to seek an intervention order under the Family Violence Protection Act 2008 (Vic) (‘ FVP Act ’). However, in some cases, 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 FL Act. Who can obtain an injunction? An injunction is available to people who: • are married; • are separated or divorced; • are in a de facto relationship (heterosexual or same-sex relationship); • have children; • do not have children (only in certain cases). Unlike intervention orders under the FVP Act, injunctions cannot be obtained under the FL Act against other family members (e.g. siblings, uncles, in-laws). Also, injunctions cannot be obtained under the FL Act for people in an intimate relationship (unless they have a child together). What is an injunction? In this section, ‘husband’ means legal or de facto husband and ‘wife’ is a legal or de facto wife. ‘De facto relationship’ is defined in the FL Act (s 4AA) and includes same-sex relationships. While injunctions cover many situations, they can be granted for the personal protection of a child or a party (e.g. to stop a person from harassing, assaulting or approaching another person) or to stop a person from entering particular premises (e.g. an injunction can direct a husband to stay away from where his wife lives or works or where a child attends childcare or school). 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 family 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 family 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 Chapter 4.1: Marriage and divorce, and Chapter 4.3: 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. It is important to note that the party who leaves does not forfeit legal entitlement to a property settlement simply by leaving. How do I get an injunction? Applications for injunctions are filed in the Federal Circuit and Family Court of Australia ( FCFCOA ) (www.fcfcoa.gov.au) or the Magistrates’ Court (www. mcv.vic.gov.au) . Division One of the FCFCOA (formerly the Family Court of Australia) mostly only hears complex cases so all applications for injunctions commence in Division Two of the FCFCOA (formerly the Federal Circuit Court of Australia). Division Two has registries in Melbourne and Dandenong and also sits in various country circuits. The Magistrates’ Court sits in various CBD, suburban, regional and rural locations. Application forms for injunctions can be obtained from the registry of FCFCOA 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.