an injunction is a court order in which a person is ordered to perform
the injunction available under section 114 covers circumstances that stem from a marriage.
Sections 68B and 114 provide injunction relief for personal protection and for circumstances that arise out of a marital relationship.
The power of arrest without warrant is available for personal protection injunction orders.An injunction is a legal remedy that is provided by the Family Law Act 1975. It is issued by a court to require a person to do, or restrain from performing a specified action. There are primarily two sections in the Family Law Act that provide for injunctions: Section 68B and Section 114 FLA.
Section 68B is available as a remedy for the protection of women and children against violence while the injunction under Section 114 is available for circumstances arising out of the marriage and in certain circumstances also applicable to de facto relationships.
Section 68B provides that a court may issue an order for injunction for the welfare of a child. The injunction under this section can be availed of by both married persons and de facto partners. The injunction will provide personal protection for a child, the child’s parent, the person with whom the child lives, spends time or communicates with under a parenting order, and the person who has parental responsibility for the child.
A Section 68B injunction can also serve to prevent a person from entering or remaining in the place of residence, place of employment or any other specified area of the child, child’s parent, a person with a parenting order or who has parental responsibility for a child. Injunctions under Section 68B is usually resorted to by victims of family violence.
A Section 114 injunction may be issued for the following reasons:
- 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 any other place where the other resides or works,
- for the protection of the marital relationship;
- in relation to a property of the marriage;
- in relation to the use or occupancy of the matrimonial home;
- relief from obligation to perform marital services or from rendering conjugal rights;
- restrain the trustee of the bankrupt party to the marriage from declaring and distributing dividends to the bankrupt’s creditors;
- restrain the trustee of a party to a marriage who is a debtor in a personal insolvency agreement, from disposing of property that is subject of the agreement.
Section 114B is utilized by those former spouses or partners who wish to exclude the other party from the family home. As of the moment the personal protection purposes of Section 114 are not available to a de facto partner.
A de facto partner cannot also seek relief from performance of conjugal obligations nor seek protection for the de facto relationship under this section. However, the Court does have an injunction power pertaining to the property in a de facto relationship.
An application for injunction may be filed with the Family Court
An application for injunction may be filed with the Family Court, Federal Circuit Court or a local Magistrates Court. The injunctions granted under both Section 68B and Section 114 may be an interlocutory order or otherwise and it may be granted unconditionally or the court may impose conditions as is just and convenient to do so.
If it is an urgent injunction application, such as if there is an allegation of family violence, the applicant can seek an injunction on an “ex parte” basis. In an ex parte application, the other party will not know or be informed of the application because of the urgency and the safety risk to the child or applicant if the other party were to know of the application.
The applicant must file an affidavit along with the application and state therein the reasons for the injunction application. There must also be supporting evidence like affidavits of witnesses and medical certificate so that the Court will be satisfied with the urgency of the application.
The breach of an injunction issued under the Family Law Act is not a criminal offence.
The applicant must seek the enforcement of the injunction by going to court and ask for a Contravention Order. The possible penalties that may be meted for the breach of an FLA injunction are contempt of court, imposition of fines or imprisonment.
The power of arrest without warrant immediately attaches to injunctions issued for personal protection purposes. Even if for example, the injunction is to restrain the other party from entering the matrimonial home, as long as the order also specifies that it is for the personal protection of a person, the power of arrst can be enforced. This power of arrest exists for the entire duration of the injunction unless it is revoked or discharged by court order.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.