An injunction is an order of the court which prevents a person from doing a certain act or thing or requires a person to do a certain act or thing. In family law cases, a party may apply for an injunction either in relation to a parenting matter or a financial matter.
In parenting matters, the court has the power to grant an injunction as it considers appropriate for for the protection of a child (Family Law Act, Section 68B). In order to obtain an injunction for the protection of the child there must be evidence of physical or verbal assault of the child or threats to the welfare of the child.
An injunction may be sought:
- for the personal protection of a child, the child’s parent, a person who has parental responsibility for the child, or a person with whom the child lives, spends time with, or communicates with under a parenting order; or
- to restrain a person from entering or remaining in a place of residence, employment or education or other specified area of the child, the child’s parent, a person with a parenting order in respect of the child, or a person who has parental responsibility for the child.
For example, a parent may seek an injunction to restrain the other parent from from allowing a third party to be in contact with the child, if there is evidence that the third party has abused or may abuse the child, or if there is a risk of family violence in the presence of the child.
In financial matters, the court has the power to grant an injunction in relation to parties to a marriage or de-facto relationship (Family Law Act, Section 114).
Examples of the types of injunctions granted in financial matters include injunctions:
- for the personal protection of a party to the relationship;
- for the sole occupation of the former matrimonial or de-facto home;
- to restrain a party to the relationship from entering or remaining in the matrimonial home or the other party’s residence or place of work;
- for the protection of the marital relationship;
- in relation to the property of a party to the marriage; or
- in relation to the use or occupancy of the matrimonial home.
It is common in property law cases for one party to attempt to dispose of an asset or to otherwise arrange their financial affairs with a view to preventing the other party from receiving a share of an asset. In such cases, the court may grant an injunction to restrain the party from taking a particular action which reduces the asset pool. For example, a court may urgently restrain one party by injunction from selling the former matrimonial home.
Applying for an injunction
An injunction may be made by consent between the parties. In circumstances where the party seeking the injunction cannot obtain the consent of the other party, or where it would be detrimental to try to obtain consent, a party can apply for an injunction. The application can be made on an “ex-parte” basis meaning that the other party does not need to be present in court and does not have to know about the application being made.
Breach of an injunction
If a Family Law Act injunction is contravened, it is up to the person protected by the injunction to file a contravention application seeking enforcement of the injunction. The contravention must be proven for the offending party to be punished.
Given the complexity of this type of proceeding, it is recommended that anyone seeking this type of order engage a lawyer. The penalties courts can impose for breaching an injunction include the imposition of a bond, fine, or sentence of imprisonment.
Under Sections 68C and 114AA of the Family Law Act, a police officer who believes on reasonable grounds that a person has breached a Family Law Act personal protection injunction can arrest the person without a warrant. Members of the Australian Federal Police, as well as state and territory police forces, are empowered to conduct such arrests. However, there is no power of arrest in relation to injunctions for matters other than personal protection.
If you are a victim of family violence, you may wish to seek protection under state or territory family violence legislation, as such an application is generally quicker and cheaper than an application for a family law injunction. A breach of a family violence order is a criminal offence and attracts penalties under the criminal law system.
If you require legal advice or representation in a family law matter or in any other legal matter, please contact Go To Court Lawyers.