Protection orders and injunctive relief

Injunctions available under the Family Law Act

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, either in separate proceedings or in family law proceedings already before the court. 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.

In addition, s 114(2) permits a court to make an order ‘relieving a party to a marriage from any obligation to perform marital services or render conjugal rights’.

If a Family Law Act injunction is breached, it is up to the person protected by the injunction to file an application to seek an order from the court regarding the contravention.[1] Sections 68C and 114AA provide an automatic power of arrest where a person breaches an injunction for personal protection. In the report, Equality Before the Law (ALRC 69), the ALRC reiterated a recommendation it made in an earlier inquiry into contempt that a wilful breach of an order for personal protection should be a criminal offence.[2]

Breach of a protection order under state or territory family violence legislation is a criminal offence. In addition, the processes for seeking a protection order under state and territory family violence legislation are generally quicker and cheaper than an application for an injunction under the Family Law Act.

The Commissions consider that Family Law Act injunctions perform an important role in the Family Law Act, and should continue to be available to provide protection to victims of family violence who fall within the jurisdiction of the family courts, particularly where other family law proceedings are anticipated or on foot. It is desirable that victims of family violence are able to resolve their personal protection, parenting and property issues in the one court, thereby minimising victims’ exposure to multiple proceedings in different jurisdictions, and avoiding personal and financial costs associated with reiterating the same facts before different courts. Therefore, the Commissions consider that reforms should make Family Law Act injunctions more accessible and effective.

The Commissions are interested in hearing about ways in which the procedures for obtaining a Family Law Act injunction may be improved so that they are less complex and more effective. This may include removing filing fees, or permitting an application for an injunction for personal protection without an affidavit.

The Commissions are aware that s 114 injunctions may be sought for purposes other than the personal protection of a victim of family violence. The Commissions are therefore interested in whether there should be different procedures depending on whether a person is seeking an injunction for personal protection from family violence or an injunction that does not relate to family violence, for example, regarding the use of property.

The Commissions’ preliminary view is that the contravention of a Family Law Act injunction for personal protection should be a criminal offence, consistent with the position regarding breach of protection orders under state or territory legislation. Importantly, this would clearly remove the onus from the victim of the violence to bring the application for contravention of the injunction. It would relieve the victim of having to undertake costly family law proceedings to enforce the injunction and reinforce the message that family violence is not a private matter, but a criminal offence of public concern.

Question 9–1 In order to improve the accessibility of injunctions for personal protection under the Family Law Act 1975 (Cth) to victims of family violence, should the Family Law Act provide separate procedures in relation to injunctions for personal protection and other family law injunctions available under s 114 of the Act? If so, what procedures would be appropriate?

Proposal 9–1 The Family Law Act 1975 (Cth) should be amended to provide that a wilful breach of an injunction for personal protection under ss 68B and 114 is a criminal offence, as recommended by the ALRC in Equality Before the Law (ALRC 69).

Interaction with protection orders

Injunctions granted under ss 68B and 114 of the Family Law Act may operate alongside protection orders made under state and territory family violence legislation. This gives rise to the potential for inconsistencies between orders. Section 114AB of the Family Law Act provides that, if a person has sought, or is seeking, a protection order under prescribed state or territory family violence laws, he or she is not entitled to seek, in addition, an injunction under the Family Law Act, unless the protection order proceedings have lapsed, been discontinued or dismissed, or the orders are no longer in force.

Conversely, there is no bar to a person who is seeking, or has obtained, a Family Law Act injunction to apply for a protection order under state or territory family violence legislation. Neither is there a formal prohibition on one party seeking a Family Law Act injunction even though a related party has already obtained a protection order under state or territory family violence legislation. The effect is that ‘the prohibition under s 114AB only extends to the same party using both procedures and then only when the State or Territory procedure has been used first’.[3]

A person who has sought or obtained a protection order under state or territory legislation is not prohibited from seeking a Family Law Act injunction in relation to family law matters not able to be dealt with by a protection order. This is because s 114AB of the Family Law Act only prohibits applications for an injunction ‘in respect of a matter’ for which a protection order has been sought or obtained.[4]

In order to determine whether inconsistent orders arise in practice, the Commissions are interested in comment on whether there are any cases in which a person, who has obtained a Family Law Act injunction for personal protection, also needed to seek additional protection under state or territory family violence legislation.

The Commissions also note that precluding a person from bringing proceedings for a protection order if he or she has already sought a Family Law Act injunction, or vice versa, does not eliminate the potential for inconsistency between orders. This is because a respondent, or other person affected by the order, would still be able to seek an injunction or protection order in the alternative jurisdiction to which the initial order was made.

Question 9–2 In practice, how often does a person who has obtained an injunction under the Family Law Act 1975 (Cth) subsequently need to seek additional protection under state or territory family violence legislation?

Question 9–3 Should a person who has sought or obtained an injunction for personal protection under the Family Law Act 1975 (Cth) also be able to seek a protection order under state or territory family violence legislation?

Section 68R of the Family Law Act allows a state or territory court that is dealing with a protection order to revive, vary, discharge or suspend an injunction granted under ss 68B or 114, to the extent to which it expressly or impliedly requires or authorises a person to spend time with a child. The Commissions consider that the mechanism in s 68R is a useful way for courts to address inconsistencies with orders under the Family Law Act when making a protection order under state or territory legislation. However, s 68R currently only applies to injunctions that expressly or impliedly require or authorise a person to spend time with a child. In the Commissions’ preliminary view, there might be merit in enacting a provision similar to s 68R to allow state and territory courts to revive, vary, discharge or suspend a Family Law Act injunction for the personal protection of a party to a marriage or other person.

Without such a provision, Family Law Act injunctions will prevail over a protection order made under state or territory family violence legislation to the extent of any inconsistency. Allowing a state or territory court to amend a Family Law Act injunction when making a protection order would address such inconsistencies and remove the need for a person to return to a federal family court to revoke an injunction before applying for a protection order under state or territory legislation.

Question 9–4 In practice, do problems arise from the provisions dealing with inconsistencies between injunctions granted under ss 68B and 114 of the Family Law Act 1975 (Cth) and protection orders made under state and territory family violence legislation?

Proposal 9–2 The Family Law Act 1975 (Cth) should be amended to provide that in proceedings to make or vary a protection order, a state or territory court with jurisdiction may revive, vary, discharge or suspend a Family Law Act injunction for the personal protection of a party to a marriage or other person.

Injunctions to relieve a party to a marriage from rendering conjugal rights

Section 114(2) of the Family Law Act provides a further power to grant an injunction in the context of a marriage. It permits the court to ‘make an order relieving a party to a marriage from any obligation to perform marital services or render conjugal rights’. Section 114(2) implies that there is a continuing obligation to render conjugal rights and provide marital services—obligations that no longer exist in law and which should not be assumed to form part of a marriage as a social or legal institution.

Section 114(2) gives the court power to relieve a person from performing certain perceived obligations within a marriage. In the Commissions’ view, this purpose is adequately served by s 114(1) alone. The need to protect a party to the marriage from unwanted sexual intercourse, or to require that a married couple not live together, can be achieved using injunctions under s 114(1) for the personal protection of a party to the marriage, or to restrain a party to the marriage from entering or remaining in the matrimonial home. More generally, the court’s broad discretion to grant an injunction where it is just or convenient to do so, and upon such terms and conditions as the court considers appropriate, allows the court to tailor an injunction to the specific needs of the parties.

The Commissions therefore consider that the power to make an order relieving a party to a marriage from any obligation to perform marital services or render conjugal rights is unnecessary and inconsistent with current principles of family and criminal law, and, as such, should be repealed.

Proposal 9–3 Section 114(2) of the Family Law Act 1975 (Cth), which permits a court to make an order relieving a party to a marriage from any obligations to perform marital services or render conjugal rights, should be repealed.

[1]Family Law Rules 2004 (Cth) r 21.02.

[2]Australian Law Reform Commission, Equality Before the Law: Justice for Women (Part 1), ALRC 69 (1994), Rec 9.12; Australian Law Reform Commission, Contempt, ALRC 35 (1987), [671].

[3]R Alexander, Domestic Violence in Australia: The Legal Response (3rd ed, 2002), 63.

[4]Family Law Act 1975 (Cth) s 114AB(2).