An injunction is a kind of order made by a court that requires a person to do or refrain from doing a particular act. The circumstances in which a court exercising jurisdiction under the Family Law Act 1975 (“the FLA”) can grant injunctions can be diverse (for more about HHG’s Family Law services please click here). It can extend from orders restraining a person from removing a child from the jurisdiction of the court, to restraining the disposal of property or the payment out of money and can, in certain circumstances, extend to restraining a third party and which affects the rights of a third party.
The power to grant injunctions is contained in two separate sections of the FLA one in relation to the courts’ child welfare jurisdiction, and the other in the courts’ jurisdiction in relation to matrimonial causes (matters arising from the marital relationship).
Section 68B of the Family Law Act permits a court to grant an injunction to protect the welfare of a child. The injunction may be:
- for the personal protection 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; or
- to restrain a person from entering or remaining in the 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
Section 114 of the Family Law Act permits a court to grant an injunction in circumstances arising out of the marital relationship, where the court considers it proper. An injunction may be granted:
- for the personal protection of a party to the marriage;
- to restrain a party to the marriage 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
A victim of family violence is most likely to seek an injunction for personal protection for themselves and any children. Family Law does not define ‘personal protection’, but courts have interpreted the term to include protection from physical harm as well as protection of a person’s wellbeing and freedom from interference and harassment.
Application process
Injunctions are usually sought by way of an application for interim or urgent orders. If orders are to be sought as permanent (final) orders then those orders will be sought as part of orders being sought in an Application for Final Orders. Rule 4.01 of the Family Law Rules requires that an application is to include ‘all causes of action that can be disposed of conveniently in the same case.’
An application for urgent/interim injunctions is commenced by filing:
- an Application in a Case;
- an affidavit (or affidavits) in support of the application;
- any other documents set out in Table 2.2 of the Family Law Rules.
If you would like advice in relation to injunctions please contact our Family Law team for assistance.
If you would like further information in relation to this matter or other legal matters please contact our office on Freecall 1800 609 945 or email us now.
