Family Law - Injunctions (Personal Protection)

What is an Injunction?

An injunction, or restraining order, is an order made by a court directing a party not to do some act or to stop doing some act.

A court can grant an injunction that is either permanent or interlocutory (provisional or interim). A permanent injunction is based on a final determination of the rights of the parties and is intended to permanently prevent the infringement of those rights. By contrast, an interlocutory injunction is to preserve matters pending a final hearing of issues in dispute.

While injunctions or restraining order cover many other situations, they can include the making of an order directing a respondent to stay away from the matrimonial home or to stay away from the applicant. An injunction can be obtained to stop one party harassing, assaulting or molesting the other and/or restraining the other party from entry into or remaining on specified premises. In serious situations, where the situation at home is difficult and any children are being adversely affected, a party can obtain an order for sole use and exclusive occupancy of the matrimonial home. There need not be actual physical violence. The court must consider the atmosphere at home, the means and needs of the parties, the needs of the children and hardship to either party if forced to leave.

Such injunctions can be difficult to obtain. Even where granted, if there is a matrimonial home owned by the parties, there will have to be a property settlement at some time in the future.

Who can apply for an Injunction?

Injunctions are available to both married and divorced people with or without children, as well as to domestic partners, i.e. unmarried or de facto or non-cohabiting couples, but only where there is a child of the relationship. A child, too, can apply for an injunction for personal protection. In this section, therefore, "husband" means legal or de facto husband and "wife" means legal or de facto wife.

Where can I apply for an Injunction?

Injunctions can be obtained in the Family Court of Australia, the Federal Magistrates Court or a local Magistrates' Court. Each of these courts sits in various suburban, regional and rural centres.

The laws relating to Injunctions

The Family Court and the Federal Magistrates Court's power to grant injunctions is contained in section 68B and section 114 of the Family Law Act (in Western Australia, Family Court Act sections 235 and 235A).

Injunctions in child related proceedings

Section 68B of the Family Law Act enables the court to grant a number of injunctions "appropriate for the welfare of the child". This includes an injunction for the personal protection of:

• the child; or
• a parent of the child; or
• a person with whom the child is to live, spend time or communicate with under a parenting order; or
• a person who has parental responsibility for the child.

Under section 68B of the Family Law Act, an order can be obtained restraining a person from entering or remaining in the place of residence, employment or education of a child or any of the persons referred to in section 68B, or a specified area that contains such a place.

The orders may be interlocutory or final orders, and may be granted where it is "just or convenient" to do so under section 68B(2) of the Family Law Act. Injunctions can be granted unconditionally or on such terms and conditions as the court thinks fit under section 68B(3) of the Family Law Act.

Injunctions relating to 'martimonial' proceedings

Section 114 of the Family Law Act (in Western Australia, Family Court Act section 235A) grants to the court a wide general power to "grant such injunctions as it considers proper" in any proceedings of the kind referred to in paragraph (e) of the definition of "matrimonial cause" in section 4(1) of the Family Law Act, that is, in proceedings for an "order or injunction in circumstances arising out of the marital relationship".

Section 114(1) of the Family Law Act lists six circumstances in which an injunction will be granted, but it is not exhaustive, in relation to:

1. • Personal protection
2. • Restraining a person from approaching or residing in a matrimonial home
3. • Restraining a person from approaching or entering a place of employment
4. • Protection of a marital relationship
5. • Matrimonial property
6. • Occupancy or use of the mantrimonial home

Section 114(2) of the Family Law Act specifies injunctions available in relation to de facto relationships.

Police enforcement of injunctions

In support of such injunctions, a power of arrest without warrant is given to a state or federal police officer who believes, on reasonable grounds, that a person against whom an injunction is directed has breached the injunction by causing or threatening to cause bodily harm to, or by harassing or molesting, the person protected by the injunction: under section 68C(1) of the Family Law Act (or in Western Australia, Family Court Act section 236).

The power of arrest only attaches to injunctions that expressly refer to the "personal protection" of a party. This will include an order for sole use and exclusive occupancy or an order restraining entry to or remaining upon specified premises, but only if that order specifically uses the words "personal protection".

In reality, however, the state police often refuse to arrest or to enforce injunctions under the Family Law Act. The Family Law Act also specifies procedures following the arrest and conditions for keeping a person in custody.

Breach of a Family Law Act injunction is not a criminal offence of itself. Police do not institute breach proceedings: the victim has to go back to court to do so. In this regard, a restraining order or injunction is not as effective as an intervention order (in VIC) or an AVO (in NSW). The effect of party failing to comply with the injunction, for example, by again hitting a partner or attending a partners premises, is to make the offending party liable to punishment for contempt or, more commonly, for contravention of the injunction, which can include a fine and/or imprisonment. Contempt is for serious and persistent breaches.

Separate forms and rules apply to contravention proceedings. It is advisable to seek legal advice before undertaking such proceedings.

How do I get an Injunction?

The hearing date for an injunction or restraining order depends on the amount of work the court has before it. Where there is an element of urgency, the Family Court, the Federal Magistrates Court or local state court (if they are hearing family law matters) usually tries to accommodate a party, and a hearing date can be obtained within a few days. Otherwise it may be up to six weeks from the date of filing the application before the case can be heard.

In urgent cases, an action can be started by an ex parte application (i.e. in the absence of the other party). The court can then make an ex parte order in favour of the applicant against the respondent until further order 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 allow a restraining order to be heard ex parte when a party seeks an order that the other party vacate the matrimonial home. A hearing of an ex parte injunction for an order restraining a party from molesting the other party will be granted more readily. In most cases, applications for injunctions will be heard after the respondent party has been served with the application and the affidavit in support.

If the applicant party needs an ex parte or an urgent interim restraining order, that party must file an application seeking interim order, together with an affidavit (a sworn statement) setting out the reasons for seeking an injunction. The applicant party should support the allegations by other evidence if available, e.g. from eye witnesses to violence, witnesses to the parties physical condition, or medical evidence given in court by a doctor. If the applicant party is seeking final orders, that party need only file the appropriate application and no other supporting material, unless the application is contested. A de facto partner can only seek such orders under the FLA if there are children of the relationship.

Forms can be obtained from the shared registry of the Family Court and Federal Magistrates Court or from a local Magistrates' Court. Applications have a filing fee, for which a waiver or exemption can be obtained in cases of financial need.

If ex parte orders are sought, the documents filed will be referred to the Registrar of the Magistrates' Court or a Registrar of the Family Court or Federal Magistrates Court. The Registrar will recommend whether or not the ex parte application will proceed to be heard before a Magistrate, Judge or Federal Magistrate. This recommendation operates as a clearing house to ensure the courts do not get cluttered with applications which 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 respondent. It usually takes some weeks before the application is heard, so it is worth pursuing promptly

What evidence do I need?

Five types of evidence that may help support an application for an Injunction Order:

1. An affidavit - your written account of incidences
2. Any photographs
3. Any Medical reports
4. An affidavit - from a reliable and credible witness
5. Annexed to Affidavits - copies of text messages, e-mails, faxes, etc.

Get legal advice

You should get legal advice before deciding what to do. A lawyer can help you understand your legal rights and responsibilities, and explain how the law applies to your case. A lawyer can also explain and help you reach an agreement without going to court.

You can get legal advice from a:

• legal aid office
• community legal centre, or
• private law firm.

In situations of serious and urgent threats to personal safety, it is recommended that you contact police to obtain restraining orders through your local court.

Disclaimer

The Family Law Blog provides general information only and is not provided as legal advice. If you have a legal issue, you should contact a lawyer before making a decision about what to do or applying to a Court.