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INJUNCTIONS

Are you involved in a family law dispute?

Are you concerned that somebody is about to do something which you do not wish them to do?

Are you concerned that somebody will fail to do something that you think that they should do?

Have you tried to reach an agreement with the other party in relation to these matters, but have failed to come to any final solution?

You may need to apply for an injunction.

Injunctions are essentially orders by the court either compelling someone to do something or restraining him or her from taking some action.

There are many different types of injunctions that can be applied for and injunctions can be applied for in a number of different proceedings. The Family Court has the power to grant injunctions to force a party to a marriage or a party to a Family Court proceeding to take certain actions or to stop taking certain actions.

In relation to child matters, it is important that children not be removed from the place where they are residing. In other words they should not be removed from your care if they are living with you. If there is a threat of this happening, or if the children have already been removed and you are afraid that they are going to be taken further away, then you can apply to the court for an injunction stopping the other person.

If you obtain a court order preventing the children from being taken out of Australia, for example, then this order can be lodged with the Airport and Port Watch List through the Federal Police and the children will be removed from an aeroplane or ship if necessary.

In relation to property matters, are you concerned that someone is wasting assets?

Are you concerned that somebody may try to sell the car or dispose of the proceeds of the sale of the house?

If these or other matters are of concern to you, you can also apply to the Family Court for injunctions preventing this from happening. The injunction will maintain the financial status quo.

BASIC FACTS 

What are injunctions? 

Section 114 of the Family Law Act provides that the court may grant injunctions in proceedings between parties to a marriage: 

  1. For divorce; 
  2. In respect of maintenance for one of the parties; 
  3. In respect to property settlement; 
  4. For approval of a maintenance agreement or revocation of such approval or for registration of a maintenance agreement; 
  5. For an order or injunctions in circumstances arising out the marital relationships; 
  6. For the enforcement of a maintenance agreement; 
  7. For the enforcement of a decree made under the law of an overseas jurisdiction for maintenance of one of the parties; 
  8. In any other proceeding including proceedings with respect to enforcement of an order in relation to current, pending or completed proceedings of the kind referred to above. 

The court may make an order or grant an injunction as it considers proper with respect to what the proceedings are about, including: 

1. An injunction for the personal protection of a party to a marriage; 

2. An injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is situated, or the premises in which the other party to the marriage resides are situated; 

3. An injunction restraining a party to the marriage from entering the place of work of the other party to the marriage; 

4. An injunction for the protection of the marital relationship; 

5. An injunction in relation to the property of a party to the marriage; or 

6. An injunction relating to the use or occupancy of the matrimonial home. 

As you can see, there are a large variety of orders that can be made in different circumstances. 

Injunctions in relation to property under Section 114(1) of the Family Law Act are "temporary" and "personal". 

The injunction is "temporary" in that it will last only until an application for a property settlement or divorce can be dealt with. The injunction is "personal" in that it must be made against a spouse and not some third party. 

For example, an order may be made against a spouse restraining him or her from withdrawing money from a bank account, but not against the bank manager restraining him or her from allowing the spouse to withdraw money. 

Section 68B of the Family Law Act gives the court power to make an order or grant an injunction that it considers appropriate for the welfare of a child when there are proceedings about the child (e.g. residence or contact), including: 

  1. an injunction for the personal protection of the child; 
  2. an injunction for the personal protection of: 
  • a parent of the child; or 
  • a person who has a residence order or a contact order in relation to the child; or 
  • a person who is responsible for the decisions concerning the long term or day to day care, welfare and development of the child; or 
  1. an injunction restraining a person from entering or remaining in: 
  • a place of residence, employment or education of the child; or 
  • a specified area that contains such a place; or
  1. an injunction restraining a person from entering or remaining in: 
  • a place of residence, employment or education of a person referred to in paragraph (b); or 
  • a specified area that contains such a place. 

Also, if there are other proceedings before the court (e.g. a property settlement) the court may grant an injunction in relation to a child, either on a temporary basis or not, when it appears to the court that it would be just or convenient to do so. The court can make such an order on whatever terms and conditions it thinks are appropriate. 

This power covers only children of a marriage in Western Australia, but also covers all children (whether their parents were married or not) in all other States. In Western Australia, children whose parents are not married are covered by the Family Court Act 1997. Section 235 of that Act is virtually identical to the provisions stated above. (There is no equivalent to Section 114 of the Family Law Act) 

It is extremely difficult to get an injunction against a third party (someone other than your spouse). However, if that other person becomes involved in the court proceedings, then you may be able to obtain an injunction against such a person. You should seek legal advice if you believe it is necessary to compel or restrain someone other than your spouse from doing something. 

The Family Law Act has power to make orders or injunctions with respect to your personal protection. These are often called "non-molestation" orders. There are powers given to other courts in each State to make similar orders (e.g. restraining orders or apprehended violence orders). 

If you have applied to a court for an order under a relevant State Act you cannot then apply for an injunction in respect of the same matter under the Family Law Act until the other application has been finished and any orders made are no long in force. 

This does not work the other way, however. If you have applied to the Family Court for an injunction nothing prevents you from also applying to the relevant State court for protection under their laws as well. 

You need to consider which court you will apply to for an order for your personal protection. On the one hand, for instance, you may need to apply to the Family Court anyway for other orders (e.g. residence of or contact with a child or a property settlement). But on the other hand, you may find the police act more quickly on a breach of a restraining or apprehended violence order made in a court other than the Family Court. A breach of such orders (which is a criminal offence) will sometimes be prosecuted and punished more readily or aggressively than a breach of a Family Court injunction. It important to consider all your options. 

An application for an injunction would almost always be made as part of an application for, say, property settlement matters or residence or contact to a child, or spousal maintenance and so forth. 

Whether the court will make the orders you are asking for is up to the court. The court do does not have to make the orders. You will need to present good reasons why the injunction should be made. 

With property matters, this will often include evidence by a spouse unable to sell an asset that the parties' property should be retained on the hope that perhaps it will increase in value between now and when final property settlement is reached. On the other side, the other spouse is prevented from using an asset during this period. This may have consequences for him or her. The two sides will be weighed up by the court. 

Sometimes the court will not consider the injunctions sought are appropriate (e.g. if the child was able to ride on the parent's motorbike during the marriage, why should that be stopped now). It is your responsibility to present the court with facts which justify the making of the injunction. The court will not lightly make orders presenting someone from doing something. 

Often injunctions will be mutual (e.g. if you seek an order that the child not be removed from the State, the court may make an order restraining both parents from removing the child). 

Sometimes parties will agree to injunctions if they are mutual (that is, apply to you both) or are made without admission (that is, the person is not admitting there is any need for the injunction, but the party will agree to it). An example may be, say, an injunction "not to take non-prescription drugs during contact" - a party may agree to the injunction but "without admission", which means they are not admitting there was any risk they would take non-prescription drugs. To the person seeking the injunction, it usually does not matter if the order is made without admission, the effect is the same in that the behaviour is restrained and action can be taken if the injunction is breached, that is, someone acts contrary to the injunction. 

When injunctions have been made, there are a number of ways to enforce those orders if they are disobeyed. There is also power given to the police to arrest someone who disobeys an injunction relating to the personal protection of a person. Before arresting someone, the police officer must believe, on reasonable grounds, that the party has, since the injunction was granted, breached (or disobeyed) that injunction by causing or threatening to cause bodily harm to the person protected by the injunction, or by harassing or molesting that person. To "molest" someone is to pester or seriously annoy them. 

With an order restraining someone from removing a child from Australia, that order can be served on the Federal Police. The police can place the child's details on the Airport and Port Watchlist and remove the child if attempts are made to take the child on an aircraft or ship. This is extremely useful but you do need to keep fairly regular contact with the Federal Police. They will provide you with details. 

The key steps in injunctions 

1. Who may apply

The Family Court may make injunctions under Section 68B and Section 114 of the Family Law Act. You should refer to the Information Outline above for more information in relation to the powers contained in those sections. 

Essentially you must come within the jurisdiction of the Family Court, that is, be a person who could apply to the Family Court for orders in relation to a child or financial matters. To be able to apply for orders in relation to financial matters you generally have to be a party to the marriage (although there are some exceptions). To apply for an order in relation to a child, you must be a parent of that child, the child or any other person concerned with the care, welfare or development of that child. 

For an order relating to the child, the child must be present in Australia when the application is filed or be a citizen or resident of Australia. Otherwise, with an application for an order in relation to a child or any other application, the parent of the child or one of the parties to the marriage must be an Australian citizen, resident or present in Australia. 

An order in relation to a child cannot be made if the child is over 18 years of age, is or has been married, or is in a de facto relationship. 

2. Which court

In all States except Western Australia, whether the parents of the children were married or not, the relevant law is the Family Law Act 1975. Proceedings are commenced in the Family Court of Australia, or can be commenced in a local court of summary jurisdiction in some circumstances. 

In Western Australia, if the parents of the children were married, the relevant law is the Family Law Act 1975. If the parents were never married, the relevant law is the Family Court Act 1997. For all children in Western Australia, proceedings are commenced in the Family Court of Western Australia, however, outside the Perth metropolitan area, sometimes proceedings can be commenced in the local court of summary jurisdiction. If the parents were never married and reside in Western Australia, then they must apply for injunctions under Section 235 of the Family Court Act which provisions are largely the same as Section 68B of the Family Law Act. 

3. Keep a record

Depending on the injunction that you are seeking, it is useful to have a record of the behaviour which you are now asking the court to make an order about. For example, if you are asking for an order preventing your spouse from attending your home because of his or her behaviour, then you need to have kept a record of what that harassing behaviour has been. You should keep a diary making notes of what has taken place and when. 

4. Negotiate

Again, depending on the type of injunction you are seeking, it may be useful to negotiate with the other party to reach an agreement without the necessity of court proceedings. For example, if the injunction you are seeking is to prevent the other party from cutting the child's hair, it may well be that by having discussions with the other party an agreement can be reached in relation to that issue. If an agreement is reached, you may wish to formally record that agreement by way of court orders (which would then make the agreement able to be enforced). 

5. Counseling

The Family Court has available counselors who are able to assist parties to reach an agreement in relation to their children. If you are having difficulty reaching an agreement with the other parent in relation to certain issues concerning your child and you are contemplating making an application to the court for injunctions, then it is often helpful to make use of the counseling service to try and avoid the necessity of court proceedings. The phone number for the Family Court Counseling Service is in the white pages telephone book. 

There are also private agencies which offer counseling not only in relation to children, but also in relation to the marriage and relationship between the parties. 

6. Application to the court

If you have been unsuccessful in reaching an agreement as to the matters concerning you, or the matter is of such an critical nature that you urgently need a court order, then you need to make an application to the Family Court. Often these applications need to be made quickly so as to preserve assets or continue the situation (e.g. if you are concerned that your spouse is wasting money from a bank account or repayments on a loan have stopped). 

In extremely limited circumstances, an oral application for such injunctions can be made with the written documents being filed afterwards. There would need to be a great deal of urgency to the application, however. In these circumstances, you should try to get some legal advice right away as to how to proceed.

FURTHER INFORMATION

This Information Outline is provided courtesy of Westminster Lawyers who specialize in this area of law. They are located at Level 9,  552 Lonsdale Street, Melbourne, VIC 3000 or call them on (03) 9670-1734 you would like more information on this legal topic, or you wish to obtain formal advice regarding your situation.

Westminster Lawyers is a specialist family law firm practicing in Melbourne, Australia. We have eight lawyers including three lawyers accredited by the Law Institute of Victoria as specialists in family law. We are able to assist you in all areas of family law including prenuptial and precohabitation agreements, matters arising after the breakdown of a marriage or a relationship and Wills and estate planning. Our lawyers speak a number of languages including: English, French, Italian, Mandarin, Cantonese, Shangaihese, Hokkien and Japanese. We are part of a world wide network of affiliated law firms with expertise in family law. We act in a number of international family law matters and are able to offer our clients the benefit of seamless service between offices spread across Australia, North America, Europe, Asia and the Pacific.

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