The Law Handbook 2024

302 Section 4: Relationships, families and young people The hearing date for an injunction depends on the amount of work the court has before it. When a case is urgent, the court tries to hear the matter ex parte or within a few days of the application being filed. Otherwise, it may be eight to 10 weeks from the date of filing the application before the case can be heard. This is one reason why seeking an intervention order under the FVP Act may be more appropriate. Does the respondent have to attend court? 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 spouse seeks an order directing the other spouse to vacate the family home. The court is more likely to hear an ex parte application for an injunction to restrain a person from intimidating, assaulting or approaching another person. If a spouse needs an ex parte or an urgent interim injunction, they must file an application seeking interim orders, together with an affidavit setting out the reasons for seeking an injunction. Applying for an intervention order may be preferable as it can provide immediate protection, involves far less bureaucracy and paperwork, and involves no filing fees. The applicant should support the allegations by affidavits with other evidence if available (e.g. from eye witnesses to threats or violence, witnesses to her physical condition, or medical evidence by a doctor). If the spouse is only seeking final orders, they need only file the appropriate application and no other supporting material, unless the application is contested. Given the time lag, this is clearly not appropriate for urgent cases. If ex parte orders are sought, the documents filed will be referred to the registrar of the Magistrates’ Court or a registrar of the FCFCOA. The registrar will recommend whether or not the ex parte application will proceed to be heard before a magistrate (state court) or a senior registrar or judge (FCFCOA). 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 other spouse. It usually takes weeks before the application is heard, so it is worth pursuing promptly. If protection is sought urgently, again an intervention order is usually the far better option. It is advisable to talk to a lawyer about which course of action to take (see Chapter 2.4: Legal services that can help). Police applying for injunctions Police cannot apply for injunctions under the FL Act. The person who has experienced the threats or violence must apply – with or without a lawyer. Breaching injunctions Breaching or contravening a FL Act injunction is not a criminal offence. The person who has experienced the violence or breach of the injunction has to return to court to institute contravention or contempt proceedings; the police do not do this. This is another reason why an injunction is far less effective than an interventionorder. 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 includes an order for sole use and exclusive occupancy or an order restraining entry to or remaining on 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, molesting or stalking the protected person. In reality, the state