In most cases, if immediate protection is required, it is advisable to seek an A court order that prohibits a person harming or harassing another person. See also family violence intervention order;personal safety intervention order. under the Family Violence Protection A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. 2008 (Vic) (‘FVP Act’).
However, in some cases, where there are other family law issues involved, it may be sufficient to apply for an A court order that directs a person to do, or not to do, something. For example, a court can order a developer not to demolish a historic building. An injunction may be interim (operative until further order) or perpetual (continuing indefinitely). (also known as a In family law, a court order that prohibits someone from harassing or molesting another person. See also intervention order; personal safety intervention order; family violence intervention 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). Injunctions also 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 In fact, rather than in law. Commonly used to refer to two people living together as a married couple but who are not legally married. They are sometimes said to be in a ‘de facto’ marriage or relationship. See also domestic relationship. husband and ‘wife’ is a 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 (e.g. an injunction can direct a husband to stay away from his wife).
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 An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate. 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 A document that sets out what a person wants to happen to their money and other property after they die. 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: A voluntary, formal and legally binding agreement between two people to have a permanent relationship together. There must be a statement in front of official witnesses who register the marriage with the authorities. See also cohabitation; de facto; divorce; domestic relationship. and The legal ending of a marriage by court order. A marriage is legally divorced when a court issues a decree absolute where there has been an irretrievable breakdown of the marriage. See also decree nisi., 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 A person or organisation directly involved in a court case. Parties include the plaintiff or applicant, the defendant, and any third party added to the action, but not independent witnesses. 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 Family Court (www.familycourt.gov.au); or the Federal Circuit Court (www.federalcircuitcourt.gov.au); or the Magistrates’ Court (www.mcv.vic.gov.au).
The Family Court only sits in Melbourne and mostly only hears complex cases. The Federal Circuit Court hears almost 90 per cent of all the family law cases in the federal courts. 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 The administrative section of a court that accepts documents filed with the court and also handles some public enquiries. 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 The time and place at which a court or tribunal hears the parties argue their case and makes a decision. 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 ten weeks from the date of filing the application before the case can be heard.
Does the (1) A defendant in a civil case that has been appealed to a higher court. (2) A person against whom some originating motion has been issued by an applicant. See also appellant. 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 A document that presents written evidence in a court case, setting out what a witness says is true. The witness must swear that it is true and correct in front of an authorised official. This can be done on oath or by affirmation. The person in whose name the document is sworn is called the deponent.. Unlike applications for intervention orders under state law, police are not involved with applications for injunctions and do not effect Formal delivery of legal documents to a person to tell them there are court proceedings against them which they must defend, or to make sure a witness in a case knows when they have to go to court to give evidence.. 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 Material presented to a court to prove or disprove a fact. It can include what witnesses say as well as documents and other objects. 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 with 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 Relevant or important. For example, material evidence is something that helps to prove an argument in a criminal case., unless the application is contested.
If ex parte orders are sought, the documents filed will be referred to the The officer in charge of the administrative section of a court, which is known as the registry. See also prothonotary. 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 (state court) or a senior registrar or judge (federal court). 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 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 violence must apply – with or without a lawyer.
Breaching or contravening a FL Act injunction is not a criminal A criminal act prohibited by state or commonwealth criminal law. An offence is either a summary offence (minor) or an indictable offence (serious)..
The person who has experienced the violence has to return to court to institute breach or contempt proceedings; the police do not do this. In this regard, an injunction is 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 (1) A statement giving the details of a crime an accused person is claimed to have committed. (2) A personal property security. (3) A judge’s directions to a jury at the end of a case. of contempt.
As with intervention orders under state law, an automatic power of To seize a person suspected of breaking the law and hold them in custody. Police have powers to arrest and charge suspected offenders and bring them before a court. is attached to all FL Act injunctions that provide for the personal protection of a person. The power of arrest is Legally binding or effective. 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 A document issued by a court directing an officer to take certain action. May be a warrant of apprehension, directing that a person be arrested and brought before a court; a warrant of commitment, directing that a person be arrested and imprisoned; a warrant of distress, directing that a person’s goods be seized to satisfy a debt; or a warrant of seizure and sale of real estate. 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 police often refuse to arrest or to To make people obey a law or the terms of an agreement, using police powers or court orders. injunctions under the FL Act and defer to federal police.
Duration and national recognition of injunctions
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 The authority of a court or tribunal to hear matters brought before it, based on some factor such as area or law, amount of money claimed, or geographic area. 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 (which is rare).