Types of injunctions
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). is an order given by a 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. that requires a person to do or not do a particular thing.
Under the FL A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation., a court can grant an injunction:
- protecting a spouse, parent, child, or someone who has a parental responsibility order;
- protecting a marital relationship;
- relating to property;
- relating to the use or occupancy of the family home;
- restraining a person from entering or remaining in a house or a specified area (e.g. outside or close to the family home);
- restraining a person from entering a workplace or school (ss 68B, 114(1)); or
- relieving a person in the 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. from any obligation to perform marital services or to render conjugal rights (s 114(2)).
Situations that may need family law injunctions include:
- where children are being adversely affected by others’ behaviour (even if there is no violence);
- where a spouse or partner threatens to take the children away;
- where a spouse or partner is trying to adversely affect the occupancy of the family home of the other spouse, partner or children.
Which courts can hear injunctions?
The Family Court of Australia, the Federal Circuit Court and the state Magistrates’ Court have 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. to grant injunctions under the FL Act. In practice, most injunctions are dealt with by the Family Court and Federal Circuit Court. Although the Magistrates’ Court has a limited jurisdiction in disputes over property, this does not prevent it granting injunctions depriving parties of the right to the use and occupancy of a home. This is because an injunction does not affect property interests; it only suspends enjoyment of the property.
In urgent matters, a Magistrates’ Court may be the logical starting point, particularly in country areas. The only disadvantage is that many magistrates do not like, and have less experience in, handling family law matters.
Where possible, applications should be made to the Family Court or Federal Circuit Court 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 practise, 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 Statutory rules made by parliament or by bodies the parliament delegates power to, for example a local council or a registration authority. See delegated legislation; statute., which provides for intervention orders to be made. These orders are made in Magistrates’ Courts; consequently, the Family Court or the Federal Circuit Court are no longer commonly the first court of call in seeking this legal remedy.
In case of urgency, a court may make an An application to a court made by one party only, where the other party is not present or does not yet know about the court action. (i.e. without notice to the other 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.) order for an injunction. Unless the court orders otherwise, the application should be in writing and in accordance with Rule 5.3 of the Family Law Rules 2004 (Cth) (‘Family Law 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.)
When a court makes an order or grants an injunction under sections 68B or 114 of FL Act, the court may:
- advise the parties to obtain counselling assistance; or
- To postpone a court case, to move the hearing to another time or another day. Also referred to as ‘standing over’, as in ‘standing the matter over’ or ‘standing down’. If a case is adjourned indefinitely it can only be brought back if one of the parties applies to the court. This was formerly called adjournment sine die. 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 A legally proper instruction by one person (or body) to another, so that the person is bound to take action, or make a decision, as instructed. Compare dictation. from the court does not constitute Disobeying a court order or doing something that shows disrespect for the authority of the court or a judge..
Where an act or omission referred to in section 112AM of the FL Act is an A criminal act prohibited by state or commonwealth criminal law. An offence is either a summary offence (minor) or an indictable offence (serious). 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 ‘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. 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 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. 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. without a 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. (ss 68C, 114AA).
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 (ss 68C(3), 114AA(7)).
For more information about injunctions, see Chapter 4.4: Family violence.