Marriage and divorce

An injunction is an order given by a court that requires a person to do or not do a particular thing.

Under the Family Law Act 1975 (Cth) (‘FL Act’), 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; or
• relieving a person in the marriage from any obligation to perform marital services or to render conjugal rights.

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.

The Federal Circuit and Family Court of Australia and the state Magistrates’ Court have jurisdiction to grant injunctions under the FL Act. In practice, most injunctions are dealt with by the Federal Circuit and Family Court of Australia. 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 Federal Circuit and Family Court of Australia 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, the Federal Circuit and Family Court of Australia is not the first court of call in seeking this legal remedy.

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.)

When a court makes an order or grants an injunction, the court may either:

• advise the parties to obtain counselling assistance; or 
• 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.

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).

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.

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.