Injunctions
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An injunction is an order given by a court that requires a person to do or not do a particular thing.
Under the 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/ 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); or
restraining a person from entering a workplace or school.
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; or
where a spouse or partner is trying to adversely affect the occupancy of the family home of the other spouse, partner or children.
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The FCFCOA and the state Magistrates’ Court have jurisdiction to grant injunctions under the FL Act. In practice, most injunctions are dealt with by the superior 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 rural areas. However, the Magistrates’ Court has limited exposure to injunctions related solely to property and may be reluctant to grant them.
Where possible, applications should be made to the FCFCOA 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.
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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.)
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When a court makes an order or grants an injunction, the court may either:
advise the parties to obtain counselling assistance;
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
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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).
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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.
Injunctions
Chapter: 4.1: Marriage and divorce
Contributor: Rebecca Dahl, Partner, Nicholes Family Lawyers
Current as of: 1 September 2024
Law Handbook Page: 230
Next Section: Intervening parties
