Injunctions for personal protection

Protection orders and injunctive relief

17.165 This section examines the interaction between protection orders made under state and territory family violence legislation and injunctions granted under the Family Law Act. The section considers three particular issues:

  • the general preference of victims of family violence to seek protection orders under state and territory family violence legislation rather than Family Law Act injunctions, and ways in which Family Law Act injunctions may be reformed to increase their effectiveness in protecting victims of family violence;

  • the potential for inconsistencies between protection orders under state and territory family violence legislation and Family Law Act injunctions; and

  • the appropriateness of the injunction to relieve a party to a marriage from ‘any obligation to perform marital services or render conjugal rights’ currently available under the Family Law Act.

Injunctions available under the Family Law Act

17.166 An injunction is a kind of order made by a court that requires a person to do, or refrain from doing, a particular act.[184] Courts exercising jurisdiction under the Family Law Act—that is, the Family Court, FMC and local state and territory magistrates courts[185]—can grant injunctions for a variety of purposes. The power to grant injunctions is contained in two separate sections of the Family Law Act—one in relation to the courts’ child welfare jurisdiction, and the other in the courts’ jurisdiction in relation to matrimonial causes, reflecting the constitutional limits of power in relation to family law matters.

Injunctions to protect the welfare of a child

17.167 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;[186] 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.[187]

17.168 If, during an application under pt VII of the Family Law Act, there is an allegation of child abuse or family violence, or the risk of such conduct, the court must consider whether a s 68B injunction should be granted.[188]

Injunctions to protect a party to a marriage

17.169 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.[189]

17.170 A victim of family violence is most likely to seek an injunction for personal protection. The Family Law Act 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.[190] A victim of family violence may also seek an order to exclude a person from particular places.

Persons protected by Family Law Act injunctions

17.171 Family Law Act injunctions protect a limited range of people. Section 114 injunctions are only available to protect people who are, or have been, married. On the other hand, s 68B injunctions can protect a child, the child’s parent, a person with parental responsibility for the child or a person with a parenting order in respect of the child. Because the constitutional foundation of the Family Law Act lies in the Commonwealth’s power with respect to marriage, divorce and matrimonial causes, Family Law Act injunctions are not available to protect unmarried couples without children, same-sex couples without children, siblings or other family members.[191]

Enforcement

17.172 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. The application must be accompanied by an affidavit setting out the facts, and a filing fee paid. A similar process is required regarding allegations of contempt.[192]

17.173 Sections 68C and 114AA of the Family Law Act provide an automatic power of arrest where a person breaches an injunction for personal protection. A police officer may arrest a person if the officer believes on reasonable grounds that the person has breached the injunction by causing, or threatening to cause, bodily harm to the person protected by the injunction, or has harassed, molested or stalked that person.[193] Both members of the Australian Federal Police and state and territory police forces are empowered to conduct arrests.[194] There is no power of arrest in relation to injunctions for matters other than personal protection.

17.174 Once arrested, the person must be brought before the court that granted the injunction, or another court having jurisdiction under the Act, by close of business of the day following the arrest, as long as it is not a weekend or public holiday. The police officer making the arrest must take all reasonable steps to ensure that the person who obtained the injunction is aware of both the arrest and the court hearing in relation to the breach of the injunction.[195]

17.175 If a person makes an application to seek an order from the court regarding the contravention, the court will hear the application within the strict time period. However, if an application is not made in time, the person arrested must be released.[196]

Consequences of contravention

17.176 Federal family courts may impose a range of sanctions on a person who contravenes an injunction without reasonable excuse.[197] The Family Law Act attaches different consequences to a failure to comply with an injunction that affects a child—a s 68B injunction, or a s 114 injunction in so far as it is for the protection of the child—and one that does not. Sanctions available include fines, bonds and community service orders.[198] A term of imprisonment for a maximum of 12 months may be imposed for serious contraventions.[199]

17.177 In some circumstances, penalties may also be imposed for contempt of court. Where a contempt of court does not constitute a contravention of an order, or does constitute contravention and ‘involves a flagrant challenge to the authority of the court’, the court may punish the contempt by imposing a sentence of imprisonment , a fine, or both.[200]

Aid and abet provisions

17.178 The Family Law Act provides that a person is taken to have contravened an order where that person aids or abets contravention of an injunction by a person who is bound by it.[201] The range of sanctions described above may be imposed as a consequence. Like other contraventions provided for in the Family Law Act, there are different consequences attached to aiding and abetting the contravention of s 68B injunctions and s 114 injunctions insofar as they are for the protection of the child, and s 114 injunctions which do not affect children.

Use of Family Law Act injunctions in practice

17.179 Many more victims of family violence seek protection orders under state and territory family violence legislation than seek Family Law Act injunctions.[202] Dr Renata Alexander has noted that since the introduction of state and territory legislation aimed specifically at family violence—and particularly the ready availability of family violence protection orders—the number of family violence injunctions sought in the Family Court has fallen dramatically.[203]

17.180 Associate Professor Lisa Young and Federal Magistrate Geoff Monahan have identified two reasons victims of family violence generally seek protection orders rather than Family Law Act injunctions—first, the cost and complexity of the application proceedings for an injunction and, secondly, the inadequacy of enforcement mechanisms under the Family Law Act.[204] These two key points of difference are discussed further below.

17.181 Other advantages of state and territory protection orders over Family Law Act injunctions include:

  • protection orders can protect a wider range of family members—such as siblings, extended family and other members of a household;

  • a wider range of people can initiate proceedings for a protection order, including the police;

  • state and territory family violence Acts specify a wide range of conditions or prohibitions that can be included in a protection order;[205] and

  • police are more familiar with procedures under state and territory family violence legislation.[206]

Cost and complexity of proceedings

17.182 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.

17.183 For example, in Victoria, a person seeking a protection order under the Family Violence Protection Act 2008 (Vic) will usually complete an Information Form for Application for Intervention Order, setting out the background and the orders sought.[207] The form is then given to a registrar who prepares an application and warrant (for urgent matters where there is immediate concern for the person’s safety, or a criminal offence is involved) or application and summons (if the matter is not urgent) and lists the hearing before a magistrate. There is no filing fee for the application.[208]

17.184 It is also possible for the Victorian police to apply for a protection order for a victim of family violence. The Code of Practice for the Investigation of Family Violence, issued by Victoria Police, requires police to make an application for a protection order wherever the safety, welfare or property of a family member appears to be endangered by another.[209]

17.185 In contrast, the process to obtain a Family Law Act injunction is more complex and time consuming. To apply for an injunction under the Family Law Act, an applicant must file an Initiating Application either in the Family Court, the FMC or a state or territory magistrates court. Where an application for an injunction is urgent, interim or interlocutory orders—rather than final orders—are usually sought. In such cases, the application must be accompanied by an affidavit setting out the details of the marriage or relationship, any children and the facts relied on for the injunction.[210] The applicant must pay a filing fee, unless the fee is waived by the court in specific circumstances. The applicant may also need to file a Notice of Child Abuse or Family Violence (Form 4) setting out the alleged family violence or risk of family violence.[211]

17.186 The respondent must be given notice of the hearing by being served with a copy of the application and affidavit. Police do not assist in serving documents in relation to Family Law Act injunctions because they are classified as a civil matter. Accordingly, the applicant will generally need to use a commercial process server to effect service.[212] In contrast, state and territory family violence legislation permits or requires police to serve applications for a protection order on a respondent in certain circumstances, or there are protocols are in place to ensure that police can serve applications.[213]

Enforcement

17.187 Breach of a protection order under state or territory family violence legislation is a criminal offence, attracting a police response and invoking the criminal justice system.[214] In contrast, breach of a Family Law Act injunction must be followed up by the person protected by the injunction as a private matter pursuant to the Family Law Act.

17.188 While injunctions for personal protection attach an automatic power of arrest and allow for state and territory police involvement,[215] it has been suggested that state and territory police are reluctant to exercise their power of arrest under the Family Law Act, or do not always understand their role in this regard.[216]

17.189 In the report, Equality Before the Law, 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.[217] The ALRC considered that making breach a criminal offence had several advantages:

It helps to reinforce the message that the violence is not merely a civil matter between the parties; it brings police into the matter; and it relieves the woman from having to instigate proceedings against the man, a matter which may be both financially and emotionally costly. It also brings the Family Court proceedings in line with State and Territory restraining order proceedings which police may initiate.[218]

Increasing the effectiveness of injunctions for personal protection

17.190 In the Consultation Paper, the Commissions discussed potential reforms to increase the effectiveness of injunctions for personal protection, thereby enabling victims of family violence to resolve their personal protection, parenting and property matters in one court, in this instance, a federal family court.[219] Without such reforms, parties may need to be involved in proceedings in both federal and state courts to resolve all relevant issues, including safety concerns.

17.191 In its 2009 advice on improving responses to family violence in the family law system, the Family Law Council recommended that to address this issue, consideration should be given to granting federal family courts concurrent jurisdiction with the state and territory courts to make protection orders.[220] It stated this could be achieved by a referral of powers from the states to federal family courts.[221]

17.192 The Commissions agree with the aspiration of the Family Law Council, to minimise duplicate proceedings and enable parties to obtain as many legal solutions as possible—including those for personal safety—in the one forum. This is an essential measure in making the court process as seamless as possible for victims of family violence. However such solutions must sit within the constitutional limits of power framing any family law reforms.

17.193 In this regard the Commissions note that the Australian Government already has legislative competence to make laws relating to family violence with respect to the limited range of persons specified above. This legislative competence arises from the power of the Australian Government to make laws with respect to matrimonial causes under the Australian Constitution, and the referral of the power by the states to the Commonwealth to make laws with respect to children in certain circumstances.[222]

17.194 Although federal family courts already have powers directed towards the safety of victims of family violence who are eligible under the Family Law Act, the Commissions have heard that solutions available for victims of family violence in federal family courts are largely ineffective. Consequently, the Commissions have considered various reforms to make injunctions for personal protection more effective legal solutions for victims of family violence. This strategy is consistent with the aspirations of the Family Law Council, in enabling victims of family violence to resolve their legal issues in one court.

17.195 The Commissions’ approach in the Consultation Paper to address multiple proceedings was to propose reform to the operation of injunctions for personal protection—separate from other Family Law Act injunctions—to increase their utility and effectiveness.[223] This enables parties to obtain enforceable injunctions for personal protection in federal family courts, by making breach of an injunction a criminal offence. The Commissions also sought feedback on other strategies to make injunctions for personal protection resemble more closely protection orders issued by state and territory courts.

17.196 The Commissions proposed that the Family Law Act 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.[224]

17.197 The Commissions also asked whether the Family Law Act should provide separate procedures in relation to injunctions for personal protection available under s 114 of the Act, in order to improve their accessibility.[225] The Commissions made two suggestions for a change of procedure: removing filing fees, and permitting an application for an injunction for personal protection to be made without an affidavit. The Commissions also queried what other procedures would be appropriate.

Submissions and consultations

Breach of injunction for personal protection a criminal offence

17.198 Stakeholders who commented overwhelmingly agreed with the proposal that the Family Law Act should be amended to provide that a wilful breach of an injunction for personal protection is a criminal offence.[226] For example, the Queensland Law Society argued it should be recognised that, as with breaches of state and territory protection orders, ‘the offence of breaching an injunction for personal protection is a crime against the State and ought to be prosecuted by the State.’[227]

17.199 In a joint submission with other stakeholders, Domestic Violence Victoria noted the potential benefits of family law injunctions for personal protection:

some victims will find themselves in a family law court instead of or before they are involved in family violence proceedings, and therefore in those circumstances it will be easier and more appropriate for victims to address the family violence issues as part of their family law proceedings.[228]

17.200 They argued that these victims should justly receive the same protection available under a state and territory protection order, with a breach of the order constituting a criminal offence.

17.201 Women’s Legal Services NSW expressed concern about the wording of the Commissions’ proposal, which stated that a ‘wilful breach’ should be a criminal offence. It submitted that

this imports a higher standard of proof than is currently required in the state legislation, for example, the requirement in the NSW [Act] is ‘knowingly contravenes’.

17.202 National Legal Aid and, in a joint submission, the Chief Justice of the Family Court and the Chief Federal Magistrate, stated they did not support the proposal to amend the Family Law Act to provide that a breach of an injunction for personal protection is a criminal offence.[229] The Chief Justice and the Chief Federal Magistrate suggested

there are adequate powers available under the [Family Law Act] to deal with wilful breaches of orders, which are complemented by an effective and accessible family violence protection system in the states and territories. Features of that system do not need to be replicated in the federal sphere.[230]

17.203 Other stakeholders also expressed concern about replication,[231] with some magistrates of the Magistrates’ Court and Children’s Court of Victoria arguing that this provides opportunity for ‘inconsistency and confusion’.[232]

17.204 In their joint submission, the Chief Justice of the Family Court and the Chief Federal Magistrate also stated that the indefinite nature of family law injunctions is problematic, as ‘parties may, over time, make different, informal arrangements without applying to vary the orders and discharge the injunction’.[233] By contrast, state and territory protection orders which are in force for specified periods of time, for example 12 months or two years.

Separate procedures for family law injunctions for personal protection

17.205 Stakeholder responses to the question of whether separate procedures should be provided for family law injunctions available under s 114 of the Act were mixed. A number of stakeholders expressed their support for the introduction of separate procedures.[234] The Magistrates’ and Children’s Court of Victoria were divided on the issue of Family Law Act injunctions, but some magistrates considered the operation of injunctions for personal protection ‘would work better if the personal protection provisions were separated from other injunction provisions’.[235]

17.206 Other stakeholders expressed ‘in principle’ agreement, but questioned the practical operation of separate procedures for injunctions,[236] or indicated that their support was contingent on other changes being made to the enforceability and recognition of injunctions.[237]

17.207 In answer to the Commissions’ question regarding which separate procedures for injunctions for personal protection would be appropriate, stakeholders proposed a range of measures. Women’s Legal Services NSW made a number of suggestions, including issuing injunctions for personal protection as a separate court order to enhance recognition and enforcement by police. Other avenues for potential reform it identified were enabling parties to consent to injunctions on a ‘without admissions’ basis, and allowing for parties to make undertakings.[238]

17.208 Women’s Legal Services NSW also proposed changes to federal family court forms. It suggested putting a check box for an injunction for personal protection on the Initiating Application and Response to the Initiating Application forms, and including a prompt to apply for an injunction for personal protection on the Notice of Child Abuse or Family Violence form (Form 4).[239]

17.209 Some stakeholders expressed support for the Commissions’ suggestion to remove filing fees to apply for injunctions for personal protection.[240] The Magistrates’ Court and Children’s Court of Victoria argued that charging a filing fee is ‘inconsistent with the high level of concern that ought to apply to personal safety issues’.[241]

17.210 The Commissions’ suggestion to dispense with the requirement for affidavit evidence to support applications for injunctions for personal protection did not receive widespread support. While benefits were identified, namely, ‘cost and time savings’,[242] stakeholders pointed out that affidavit evidence is an efficient way of supporting an application,[243] and may provide an alternative to the requirement for lengthy oral evidence.[244]

17.211 The benefits of separate procedures for injunctions for personal protection were identified by stakeholders. Women’s Legal Services Australia considered that separate procedures could introduce a more streamlined process to obtain injunctions for personal protection in federal family courts.[245] Women’s Legal Services NSW argued that separate procedures for injunctions for personal protection would help to educate the community about the existence of these injunctions.[246]

17.212 Some stakeholders did not support separate procedures for injunctions for personal protection, due to a view that state and territory family violence legislation should remain the principal avenue to deal with family violence.[247] Stakeholders referred to the advantages of state and territory protection orders: for example, National Legal Aid submitted that processes for obtaining a protection order in state and territory courts are ‘simple, quick and low cost’.[248] Other stakeholders—including stakeholders who supported separate procedures and provisions for injunctions for personal protection—expressed concern about two issues: enforcement of injunctions for personal protection by police; and human rights implications.

Enforcement of orders by police

17.213 Stakeholders expressed concern about enhancing Family Law Act injunctions for personal protection due to concerns that enforcement by police may be problematic, particularly in comparison with well established breach processes for state and territory protection orders.[249] Stakeholders noted that state and territory police seldom exercise their current existing powers under the Family Law Act in relation to injunctions for personal protection,[250] and many are not aware of their obligations and powers under the Act.[251]

Human rights implications

17.214 Two stakeholders raised concerns about the human rights implications of reforms enhancing family law injunctions, as these injunctions are unavailable to same-sex couples without children and unmarried couples without children. They argued that family law injunctions should be accessible to all victims of family violence.[252] In a joint submission, Domestic Violence Victoria and others suggested the first step in ensuring consistency for all victims who wish to resolve their matters in one court would be an amendment to the Marriage Act 1961 (Cth) to recognise same-sex marriage.[253]

Commissions’ views

Corresponding jurisdictions

17.215 In Chapter 3 the Commissions set out a framework for reform of the jurisdictions of courts that deal with issues of family violence. As discussed in that chapter, the Commissions do not consider it practicable to establish a single ‘stand alone’ court to deal with all legal matters relating to family violence. The Commissions are of the view that a more effective way to provide the benefits of an integrated system is to develop corresponding jurisdictions, in which the jurisdictions of courts dealing with family violence overlap to an appropriate degree. Enhancing the ability of courts to deal with matters outside their core jurisdiction allows victims of family violence to resolve their legal issues relating to family violence in the same court, as far as practicable consistent with the constitutional division of powers.

17.216 State and territory courts are often the first point of contact with the legal system for separating families who have experienced family violence, and family violence legislation is a core business of these courts. The Commissions do not recommend the development of a protection order practice in federal family courts to replicate the jurisdiction of state and territory courts. The Commissions consider that state and territory courts should remain the primary jurisdiction for obtaining a protection order—particularly given the role of police in proceedings in those courts, the wider range of persons who may be protected by state and territory family violence legislation, and the considerable experience of state and territory magistrates and court staff with respect to family violence protection order proceedings.

17.217 However, the Commissions are of the view that victims of family violence—in particular, those for whom family law proceedings are on foot or anticipated—should be able to obtain effective orders for their protection in federal family courts. This allows victims to resolve their legal issues to a great extent in the one court process. The Commissions consider that fostering the seamlessness of the court process in this way has significant benefits for victims of family violence. This approach minimises victims’ exposure to multiple proceedings in different jurisdictions, thereby avoiding the personal and financial impacts of repeated proceedings and consequent reiteration of the same facts before different courts.

17.218 The Commissions acknowledge the potential resource implications in developing corresponding jurisdictions, notably in the provision of training to judicial officers and police, discussed below. Developing the ability of federal family courts to deal with matters of personal protection may also have an effect on legal aid funding. However, the Commissions consider these reforms will lead to long term savings, by reducing replication across different jurisdictions.

Separate provisions for injunctions for personal protection

17.219 The Commissions consider that the Family Law Act should be amended to provide provisions for injunctions for personal protection separate from other types of injunctions available in federal family courts. This is an important measure in enhancing the ability of federal family courts to deal with family violence, thus developing corresponding jurisdictions.

17.220 Separate provisions are important as the Commissions consider injunctions for personal protection should operate differently from other Family Law Act injunctions, as follows:

  • federal family courts should be empowered to make injunctions for personal protection for discrete periods of time;

  • in making injunctions for personal protection, federal family courts should be able to impose a range of conditions on a person who has used family violence, similar to those conditions available in state and territory courts (discussed below); and

  • a breach of an injunction for personal protection should be a criminal offence (discussed below).

17.221 The Commissions also consider that separate provisions in the Family Law Act for injunctions for personal protection will enhance their operation in a number of ways. Separate provisions will increase awareness and recognition of such injunctions by parties, police, legal representatives and the community, and improve the accessibility and effectiveness of injunctions for personal protection.

17.222 Separate provisions for injunctions for personal protection may also be necessary to address the application of aid and abet provisions in the Family Law Act to these injunctions. In Chapter 12, the Commissions discuss aid and abet provisions in relation to state and territory legislation. Currently, aid and abet provisions in some state and territory legislation result in victims of family violence being charged, where police consider that they have consented to the breach of a protection order made for their protection. The Commissions recommend that state and territory legislation should be amended where necessary to provide that a person protected by a protection order under family violence legislation cannot be charged with an offence of aiding or abetting the breach of protection order.[254]

17.223 The Commissions are also of the view that, similarly, the Family Law Act should be amended to provide that a person protected by an injunction for personal protection should not face sanctions for aiding or abetting a contravention by the person bound by the injunction. The Commissions consider such an amendment is appropriate for the reasons expounded in detail in Chapter 12. In particular, imposing sanctions on victims in these circumstances may subject them to further trauma, and may deter them from reporting future incidences of family violence. Further, the Commissions consider that such a response is inappropriate, given the nature and dynamics of family violence.

Breach of injunction for personal protection a criminal offence

17.224 The Commissions consider that to enable federal family courts to provide effective protection for victims of family violence, a breach of an injunction for personal protection should constitute a criminal offence. The Commissions recommend that the Family Law Act should be amended in this regard.

17.225 Making a breach of an injunction for personal protection a criminal offence is the key reform in enhancing the effectiveness of these injunctions. Such an amendment provides clear benefits to victims of family violence. The creation of this criminal offence would remove the onus from the victim of family violence to bring the application for contravention of the injunction. It would relieve the victim of having to undertake possibly 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.

17.226 The Commissions note the concern of Women’s Legal Services NSW regarding the Commissions’ use of the term ‘wilful breach’ in relation to the proposed criminal offence. It is not the Commissions’ intention to introduce a more onerous test for breach of injunctions for personal protection than for breach of protection orders under state and territory family violence legislation. The Commissions therefore omit reference to the term ‘wilful’ in the recommendation that breach of an injunction for personal protection should be a criminal offence. The Commissions consider that the precise formulation of this provision is a matter for the Australian Government.

Procedures

17.227 A complementary measure in fostering the use of injunctions for personal protection is to provide separate procedures for their operation in federal family courts. The Commissions consider that separate procedures for injunctions for personal protection will increase their accessibility and utility.

17.228 The Commissions consider separate procedures should be considered to improve the operation of injunctions for personal protection, including the following:

  • removal of filing fees;

  • a check box for an injunction for personal protection included on Initiating Application and Response to the Initiating Application forms;

  • a prompt to apply for an injunction for personal protection included on the Notice of Child Abuse or Family Violence form (Form 4); and

  • the issue of injunctions for personal protection as a separate court order.

17.229 The Commissions consider that—in addition to enhancing accessibility—these procedural changes will improve awareness and recognition of injunctions for personal protection and, therefore, lead to improved safety, the principal objective in this Inquiry.

17.230 A further procedure which should apply once an injunction for personal protection is made is the inclusion of this injunction on the national protection order register. Currently, the Australian Government’s commitment to a national protection order registration system is limited to information about protection orders obtained under state and territory family violence legislation. In Chapter 30, the Commissions recommend that the national protection order register should be extended to include other information, including injunctions for personal protection.[255]

17.231 Including injunctions for personal protection on the national register is an important information-sharing procedure. The Commissions have recommended that the register be available to police officers, federal family courts and state and territory courts.[256] This would alleviate potential problems of duplication across jurisdictions and facilitate enforcement of orders by state and territory police, as discussed below. The Commissions also consider that registering injunctions for personal protection will increase recognition and awareness of these injunctions, and serve an important educative function about their importance as an additional measure to improve safety.

Enforcement of orders

17.232 While both the Australian Federal Police and state and territory police may be empowered to enforce breaches of injunctions for personal protection, the Commissions consider that these duties are more effectively situated with the state and territory police. State and territory police have established practices and procedures for enforcing protection orders, and these may be extended to the enforcement to Family Law Act injunctions. However, the Commissions acknowledge the concerns of stakeholders regarding the role of state and territory police in this regard, given that the existing powers of arrest under the Family Law Act—extending to state and territory police—in relation to injunctions are seldom exercised.

17.233 The Commissions are of the view that a number of measures would assist state and territory police in establishing processes for the enforcement of injunctions for personal protection. Most importantly, providing that breach of an injunction for personal protection is a criminal offence provides clear direction to state and territory police to enforce such injunctions. Other measures, discussed above, that may assist state and territory police in recognition and enforcement of injunctions for personal protection include: separating injunctions for personal protection from other family law injunctions in the Family Law Act; and issuing injunctions for personal protection as a separate court order.

17.234 The Commissions consider that providing training to state and territory police in relation to their powers and duties with regard Family Law Act injunctions is an important and necessary measure in ensuring these injunctions are properly enforced. Training of persons involved in family violence matters in federal family courts is discussed below.

17.235 Including injunctions for personal protection in the scheme for the national registration of protection orders is an essential step in ensuring the enforcement of injunctions for personal protection by state and territory police. Registration of state and territory protection orders on the national register enables them to be enforced in external jurisdictions. This is not necessary to give effect to the enforceability of injunctions for personal protection, as these are already enforceable in all states and territories. However, registration of injunctions for personal protection is an important step with regard to recognition of injunctions for personal protection, and information sharing.

17.236 Registration of the injunctions for personal protection ensures that state and territory police are aware of existing injunctions. Registration also provides clear direction to police in relation to their duties to enforce these injunctions. Further, once the national database is implemented, it will become the practice of state and territory police to enforce protection orders made outside their jurisdiction. While injunctions for personal protection are not external orders, the Commissions consider that this practice will extend to Family Law Act injunctions for personal protection.

Training

17.237 Training and education is an essential strategy in developing corresponding jurisdictions. In particular, training of judicial officers in federal family courts will guide and support them in making injunctions for personal protection which are analogous to protection orders available in state and territory courts.

17.238 The Commissions consider that training for federal judicial officers should cover the following factors in particular:

  • circumstances where injunctions for personal protection may be appropriate;

  • considerations relevant when making injunctions for personal protection; and

  • conditions appropriate to impose on persons who use family violence.

17.239 Information and guidance for judicial officers in relation to injunctions for personal protection should also be included in the Best Practice Principles. In particular, a list of standard conditions—similar to those available in state and territory courts—should be listed in this publication.

17.240 Training legal practitioners and registry staff in relation to new provisions relating to injunctions for personal protection is also essential to raise awareness of this option, and to promote the use of these provisions.

Human rights implications

17.241 The Commissions note the concerns raised by some stakeholders regarding the limited range of persons who may apply for injunctions for personal protection.

17.242 Most state and territory courts have jurisdiction to make protection orders in relation to a wide range of relationships, for example siblings, relatives and persons in dating relationships. The Commissions do not consider it appropriate for this broad jurisdiction to be duplicated by federal family courts. Rather, the Commissions consider that the core jurisdiction of the family court should be extended only to the extent that those persons who have family law proceedings on foot or anticipated, may resolve all—or most of—their legal matters in this forum.

17.243 The Commissions acknowledge that some persons who may be involved in or anticipate federal family court proceedings will not be eligible for an injunction for personal protection, in particular, unmarried partners without children, and same-sex partners without children. These persons may be involved in federal family court proceedings in relation to property. It is also worth noting that unmarried partners with children may only obtain an injunction for personal protection where it is appropriate for the welfare of the child.[257]

17.244 The Commonwealth has limited legislative competence in this arena, as noted above. Due to these limitations, the Australian Government cannot currently amend the Family Law Act to provide for the protection of all persons who may be involved in federal family court proceedings.[258]

17.245 As noted above, some stakeholders argued that one strategy to address the issue of limited coverage is to amend the Marriage Act to recognise same-sex marriage. This would enable federal family courts to make injunctions in relation to married same-sex partners, whether or not there are children of the relationship. However, a recommendation regarding the Marriage Act is beyond the Terms of Reference of this Inquiry.

17.246 Despite the limited coverage of injunctions for personal protection, the Commissions are of the view that these injunctions should continue to be available in a more effective form for improving the safety of persons currently eligible pursuant to ss 68B and 114 of the Family Law Act. The Commissions consider that state and territory courts—as the primary jurisdictions to resolve issues of personal protection—are the appropriate jurisdictions for the broad range of persons who fall outside the jurisdiction of the Family Law Act.

Recommendation 17–3 The Family Law Act 1975 (Cth) should be amended to provide separate provisions for injunctions for personal protection.

Recommendation 17–4 The Family Law Act 1975 (Cth) should be amended to provide that a breach of an injunction for personal protection is a criminal offence.

Interaction between Family Law Act injunctions and protection orders

17.247 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. Currently, victims of family violence tend to seek protection orders under state and territory family violence legislation in preference to Family Law Act injunctions for personal protection. Improving the effectiveness of injunctions for personal protection will foster the use of the injunction provisions, increasing the interaction between state and territory protection orders and Family Law Act injunctions for personal protection.

17.248 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 legislation,[259] 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.

17.249 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.[260]

17.250 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’.[261]

17.251 In the Consultation Paper, the Commissions asked how often a person who has obtained an injunction under the Family Law Act subsequently needs to seek additional protection under state or territory family violence legislation.[262] Most stakeholders who commented responded that this rarely arises, as victims overwhelmingly obtain protection orders in state and territory courts at first instance.[263] Stakeholders explained this preference by referring to the various advantages that state and territory protection orders have over Family Law Act injunctions for personal protection.[264]

17.252 In the Consultation Paper, the Commissions also asked if a person who has sought or obtained an injunction for personal protection under the Family Law Act should be able to seek a protection under state or territory violence legislation.[265] Most stakeholders who commented submitted that persons who have obtained, or who have sought, injunctions for personal protection should remain able to seek a protection order under state and territory family violence legislation.[266] However several stakeholders indicated that their comments assumed that the current provisions for injunctions for personal protection apply unchanged.[267]

17.253 Stakeholders cited numerous reasons in support of the position that persons who have sought or obtained injunctions for personal protection should have access to protection orders. These reasons were consistent with those discussed above in relation to the greater protection offered by state and territory family violence legislation, namely:

  • the more effective remedies offered by state and territory family violence legislation, in particular, that breach of a protection order is a criminal offence;[268]

  • difficulties in enforcing injunctions for personal protection,[269] including lack of recognition of injunctions for personal protection by state and territory police;[270] and

  • procedural advantages, with protection orders under family violence legislation described as ‘simple, quick and low cost’.[271]

17.254 Women’s Legal Service NSW argued that forcing victims to stay within the family law system may put victims at risk:

if victims are forced to stay within the family law system they may elect not to pursue personal protection injunctions because it is too daunting and difficult without police assistance or established enforcement mechanisms.[272]

17.255 The Magistrates’ Court and Children’s Court of Victoria, while arguing that a person with an injunction for personal protection should not be prevented from obtaining a protection order, considered that ‘perhaps there should be a limitation that only allows a further order if additional circumstances giving rise to the order have occurred since the family law order was made’.[273]

17.256 Women’s Legal Service Victoria pointed out that enabling a victim to deal with their protection issues in both jurisdictions may lead to inconsistencies between injunctions for personal protection and protection orders.[274]

Commissions’ views

17.257 A person who has a Family Law Act injunction for personal protection may require further protective orders in certain circumstances. For example, a person may be subject to further threats or acts of violence after an injunction has been issued by a federal family court.

17.258 Restricting persons who have obtained injunctions for personal protection from applying for a protection order under state and territory family violence legislation may operate to the disadvantage of victims of family violence. Such a restriction would require persons to apply to a federal family court to revive or vary an existing injunction for personal protection. The Commissions consider this may be onerous for victims, given state and territory courts—as the primary jurisdiction in which to obtain protection orders—are likely to remain a more accessible jurisdiction in addressing personal protection issues, particularly where family law proceedings have concluded.

17.259 The advantages of state and territory courts dealing with issues of personal protection should, as far as possible, correspond in federal family courts, as discussed above. However, there are several features of state and territory protection orders that may be difficult or unsuitable in the corresponding jurisdiction of federal family courts. Of particular note is the role of state and territory police in applying for protection orders on a victim’s behalf. Further, both police and state and territory courts have procedures in place to deal promptly with urgent applications. The Commissions therefore consider that a person who has an injunction for personal protection should retain their ability to obtain a protection order from state and territory courts.

17.260 The Commissions acknowledge that continuing to permit persons with injunctions for personal protection to apply for and obtain protection orders in state and territory courts may lead to inconsistency between orders. However, precluding a person from bringing proceedings for a protection order, if he or she has already sought a Family Law Act injunction, does not address the potential for inconsistency between orders. This is because a respondent, or other person affected by the injunction for personal protection, would still be able to seek protection order in state and territory courts. Inconsistencies between orders—and measures to deal with such inconsistencies—are considered below.

Inconsistencies between Family Law Act injunctions and protection orders

17.261 The Family Law Act provides that injunctions available under ss 68B and 114 are ‘not intended to exclude or limit the operation’ of prescribed state or territory family violence legislation.[275] If an injunction made under ss 68B or 114 is capable of operating concurrently with the protection order, both orders can operate together. However, where orders cannot operate concurrently, principles of constitutional law require that an order made pursuant to the Family Law Act, as Commonwealth legislation, prevails over an order made under a state or territory law, to the extent that the orders are inconsistent.[276]

17.262 The Family Law Act contains specific provisions to deal with such inconsistencies, discussed below, which differ depending on whether the injunction expressly or impliedly requires or authorises a person to spend time with a child, or does not involve a child.

Injunctions that relate to a child

Making a protection order that is inconsistent with a current Family Law Act injunction

17.263 A person who is seeking, or who has obtained, a Family Law Act injunction may also seek a protection order under state or territory family violence legislation. The Family Law Act provides that a protection order made under state or territory family violence legislation that is inconsistent with a Family Law Act injunction that expressly or impliedly requires or authorises a person to spend time with a child, is invalid to the extent of the inconsistency.[277] The language in this section is somewhat unclear, as injunctions work by constraining conduct, and would not in themselves provide for a person to spend time with a child—although an injunction may complement a parenting order which provides for this.

17.264 Pursuant to s 68R of the Family Law Act, a court with jurisdiction under pt VII of the Family Law Act may revive, vary, discharge or suspend an injunction made under ss 68B or 114 to the extent it expressly or impliedly requires or authorises a person to spend time with a child.[278] A court may only do so if it also makes or varies a protection order under state or territory family violence legislation and there is material before the court that was not before the court that made that original Family Law Act injunction.[279] Where a state or territory court is making or varying an interim order, it may not discharge the original family law injunction.[280]

17.265 If, when the original ss 68B or 114 injunction was granted, it was inconsistent with an existing protection order, the court must be satisfied that it is appropriate to revive, vary, discharge or suspend the injunction because the person has been exposed, or is likely to be exposed, to family violence as a result of the operation of that injunction.[281]

17.266 As noted in Chapter 16, state and territory courts are currently reluctant to use their powers under s 68R of the Family Law Act to revive, vary, discharge or suspend parenting orders made by a family court. State and territory courts may be similarly reluctant to use s 68R to revive, vary, discharge or suspend a Family Law Act injunction. However, due to the current infrequent use of injunctions for personal protection, it is not evident whether this is the case.

17.267 In order to bring the matter to the attention of magistrates, some state and territory family violence legislation directs a court, when making a protection order, to consider the terms of any Family Law Act injunctions in relation to the proceedings.[282]

Making a Family Law Act injunction that is inconsistent with a current protection order

17.268 The Family Law Act does not prohibit a party to a marriage from seeking an injunction under the Family Law Act even though the other party to the marriage has already obtained a protection order under state or territory legislation.

17.269 Where a court grants a Family Law Act injunction that expressly or impliedly requires or authorises a person to spend time with a child, which is inconsistent with a protection order made under state or territory family violence legislation, it must specify that the injunction is inconsistent with the protection order and explain why that is the case. The court must also explain the terms of the injunction, and consequences of breaching it, to the applicant, the persons protected by the injunction and the persons to whom the injunction is directed.[283] Within 14 days of granting the injunction, the court must distribute copies to relevant bodies, including the state or territory court that issued the protection order, and the head of the police force and a child welfare officer in the relevant state or territory.[284]

Injunctions that do not relate to a child

17.270 The Family Law Act does not expressly deal with inconsistency between a s 114 injunction, that does not relate to a child, and a protection order under state or territory family violence legislation. While the Family Law Act is silent on this issue, in accordance with the general principle of constitutional law discussed above, an injunction made pursuant to s 114 of the Family Law Act will prevail over an inconsistent order made under a state or territory law.[285]

Option for reform

17.271 In the Consultation Paper, the Commissions asked whether problems arise in practice from the provisions dealing with inconsistencies between injunctions granted under ss 68B and 114 of the Family Law Act, and protection orders made under state and territory family violence legislation.[286] Most stakeholders responded that they were unaware of problems arising in practice,[287] as Family Law Act injunctions are rarely used to deal with issues of personal protection.[288]

17.272 In the Consultation Paper, the Commissions noted that the mechanism in s 68R of the Family Law Act may be a useful way for courts, when making a protection order under state or territory family violence legislation, to address inconsistencies with Family Law Act injunctions. Currently, s 68R only applies to injunctions pursuant to ss 68B, and 114 to the extent that an injunction expressly or impliedly requires or authorises a person to spend time with a child. The Commissions proposed enacting a provision similar to s 68R to allow state and territory courts making or varying a protection order, to revive, vary, discharge or suspend a s 114 injunction which does not relate to a child.[289] The Commissions stated that such power should only be exercised when there is material before the court that was not before the court that made that original Family Law Act injunction, consistent with the current s 68R.[290]

17.273 Most stakeholders who commented on this proposal expressed their support.[291] Two stakeholders expressed conditional support. Women’s Legal Services NSW supported the proposal contingent on other amendments being made to make injunctions for personal protection more ‘effective and protective’.[292] National Legal Aid supported the proposal on the basis that

appropriate education/training in relation to family law and family violence has been provided to state and territory judicial officers, and that consideration of the issues is supported by the provision of relevant documentation from the Family Court proceedings.[293]

17.274 One stakeholder, who did not support the proposal, pointed to the different purposes of the legislative schemes, arguing that they

do not have the same core principles and as such it is not feasible that the state legislation should be able to override, vary or otherwise suspend a Family Law Act 1975 injunction.[294]

17.275 This stakeholder argued that if state and territory legislation could override injunctions for personal protection, parties may apply to state and territory courts to vary a Family Law Act injunction for personal protection, thus ‘circumvent[ing] the protections in place by utilising the different principles of the legislation’.[295]

Commissions’ views

Procedural strategies to prevent inconsistencies between orders

17.276 In Chapter 30 the Commissions discuss a number of procedural strategies to address problems arising from the interaction between federal family court orders and protection orders made in state and territory courts. These include recommendations to increase each jurisdiction’s awareness of relevant orders made in the other. Many of these measures will help to address potential inconsistencies arising from the interaction between Family Law Act injunctions and state and territory protection orders under state and territory family violence legislation.

17.277 For example, inadvertent inconsistencies between protection orders and injunctions for personal protection should not arise if—as recommended by the Commissions—these injunctions and orders are included on the national protection order register, and both federal family courts and state and territory courts have access to the register.[296] Another measure which may avoid inconsistency is seeking information about protection orders on federal family court application forms, and about Family Law Act injunctions on application forms for protection orders in state and territory courts.[297] These information strategies also assist in ensuring state and territory courts are furnished with relevant documents from federal family courts, and vice versa.

Legislative strategies to prevent inconsistencies between orders

17.278 The procedural strategies outlined above address inadvertent inconsistencies between orders. A legislative strategy that state and territory governments may wish to consider to avoid such inconsistencies is including provisions in family violence legislation to direct a court making a protection order to consider the terms of any Family Law Act injunctions. Such provisions are currently in force in several jurisdictions.

17.279 However, there are some circumstances where it will be appropriate for state and territory courts to deliberately make protection orders which are inconsistent with a prior Family Law Act injunction. In these circumstances, s 68R empowers a court to revive, vary, discharge or suspend an injunction pursuant to s 68B, or a s 114 injunction to the extent that it expressly or impliedly requires or authorises a person to spend time with a child. State and territory courts do not have this power in relation to s 114 injunctions which do not relate to a child.

17.280 The Commissions are of the view that a provision similar to s 68R should be enacted to address inconsistencies arising from the interaction of protection orders, and injunctions made under s 114 of the Family Law Act which do not relate to a child. This is necessary to address a gap in protection which is otherwise likely to emerge from the interaction of these orders. In particular, such a provision is necessary to protect victims of family violence where threats or acts of violence continue or escalate after an injunction for personal protection has been made. Another scenario where an inconsistent protection order may be appropriate is where a change in circumstances exposes a victim of family violence to new or escalated risk.

17.281 Enabling a state or territory court to amend a s 114 injunction which does not relate to a child would remove the requirement for a person seeking additional protection to return to a federal family court, which may be unduly onerous on a victim of family violence, as discussed above.

17.282 Such a provision also establishes a consistent approach in relation to the powers of state and territory courts to vary Family Law Act injunctions for personal protection. The current situation, in which state and territory courts may revive, vary, discharge or suspend a s 68B injunction and a s 114 injunction to the extent that it expressly or impliedly requires or authorises a person to spend time with a child, but not other s 114 injunctions, is complex and may lead to confusion.

17.283 The Commissions note the concerns raised by a stakeholder regarding the different principles of the Family Law Act and state and territory family violence legislation. The Commissions acknowledge that different principles underlie the Family Law Act and state and territory family violence legislation and that different purposes are served by the different laws, as discussed in Chapter 4. However, an overarching principle of this Inquiry is to transcend the ‘silos’ between different jurisdictions in dealing with family violence. The Commissions have made a number of recommendations to establish a common interpretative framework around family violence in both the Family Law Act and state and territory family violence legislation.[298] In this context, the Commissions consider it appropriate for state and territory courts to revive, vary, discharge or suspend an injunction made by the federal family court consistently with existing jurisdiction.

17.284 The same stakeholder also expressed the concern that parties may apply to state and territory courts to vary injunctions for personal protection in order to circumvent those injunctions. The Commissions consider that s 68R contains sufficient safeguards to deal with applications made to circumvent existing injunctions. The Family Law Act restricts the power of a court to exercise s 68R to circumstances where the court is making or varying a protection order, where the court has material that was not before the court that made the original injunction.[299]

17.285 These safeguards should be replicated in any similar provision made applicable to injunctions that do not relate to children pursuant to s 114 of the Family Law Act. The Commissions also consider that state and territory family violence legislation contains appropriate safeguards to deal with unmeritorious applications, which, in conjunction with the limitations on the exercise of s 68R, is sufficient to address the possibility of potential misuse of s 68R.

17.286 The Commissions agree with National Legal Aid that training of state and territory judicial officers is an important measure in fostering the appropriate use of s 68R and the recommended analogous provision that would apply to s 114 injunctions which do not relate to a child. In Chapter 16, the Commissions recommend that judicial officers and practitioners involved in protection order proceedings should receive education and training regarding the jurisdiction of state and territory courts under the Family Law Act.[300] The Commissions express the view that such training should cover s 68R, and any new provisions of the Family Law Act.

Recommendation 17–5 The Family Law Act 1975 (Cth) should be amended to provide that, in proceedings to make or vary a protection order under state or territory family violence legislation, a state or territory court may revive, vary, discharge or suspend a Family Law Act injunction for personal protection of a party to a marriage.

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

17.287 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’. Orders under s 114(2) are rare—the only reported case of such an order made by the Family Court was in 1978.[301]

17.288 While the Family Law Act does not define ‘marital services’ and ‘conjugal rights’, they are generally taken to include the right of married persons to cohabit and have sexual intercourse with their spouse. Under the Matrimonial Causes Act 1959 (Cth), the court had the power to make a ‘decree of restitution of conjugal rights’ to enforce the marital duty of a husband and wife to live together. This remedy has been abolished.[302]

17.289 In addition, there has historically been a view that, at common law, it was not possible for a husband to rape his wife because a wife impliedly and irrevocably consented to all acts of sexual intercourse with her husband by entering into the marriage.[303] In 1991, the High Court held that there is no rule in Australia that a husband cannot be guilty of raping his wife. The majority decision of Mason CJ, Deane and Toohey JJ stated that such a notion is ‘out of keeping with the view society now takes of the relationship between the parties to a marriage’.[304] Their Honours held that ‘if it was ever the common law that by marriage a wife gave irrevocable consent to sexual intercourse by her husband, it is no longer the common law’.[305]

17.290 At the time that s 114(2) was enacted, three Australian states—Queensland, Western Australia and Tasmania—defined rape in a way that excluded non-consensual sexual intercourse between a man and his wife.[306] Changes to the criminal law by statute now make it clear that the fact that a person is married to the person whom they sexually assault is no defence.[307]

17.291 In the Consultation Paper, the Commissions proposed that s 114(2) of the Family Law Act should be repealed.[308] This proposal received overwhelming support from stakeholders.[309] Stakeholders argued that the provision was obsolete,[310] and its language inappropriate,[311] giving ‘a false impression that there is such a thing as ‘conjugal rights’.[312]

Commissions’ views

17.292 Section 114(2) of the Family Law Act 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. This section implies a view of marriage, and particularly the role of women in marriage, that is out of keeping with modern standards of equality and autonomy in the marriage relationship.

17.293 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.

17.294 There is no need for federal family courts to have a particular power to relieve a person from performing ‘duties’ where those duties do not exist. The Commissions 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.

Recommendation 17–6 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.

[184] The granting of injunctions is historically associated with equitable jurisdiction.

[185]Family Law Act 1975 (Cth) ss 39–41.

[186] Ibid s 68B(1)(a)–(b).

[187] Ibid s 68B(1)(c)–(d).

[188] Ibid s 60K(4).

[189] Ibid s 114(1). Courts exercising jurisdiction under the Family Law Act have a more limited power to issue an injunction in de facto financial proceedings, in that the injunction is confined to the use or occupancy of the parties’ property or residence.

[190]In the Marriage of Kemsley (1984) 10 Fam LR 125, 130.

[191] R Alexander, ‘Family Violence’ in Springvale Legal Centre (ed) Lawyers Practice Manual Victoria (2009) 208–1, [2.8.313]. The constitutional framework is set out in Ch 2.

[192]Family Law Rules 2004 (Cth).

[193]Family Law Act 1975 (Cth) ss 68C(1); 114AA(1).

[194] Ibid ss 4(1); 68C(1); 114AA(1).

[195] Ibid s 114AA(3). Section 68C(3) applies this section to breaches of injunctions granted under s 68B.

[196] Ibid s 114AA(4).

[197] A person may have a reasonable excuse for contravening an order that affects a child if he or she did not understand the obligations imposed or if he or she believed on reasonable grounds that actions were necessary to protect the health or safety of a person: Ibid s 70NAE(2), (4), (5), (6), (7). In relation to s 114 injunctions that do not affect a child, a person may have a reasonable excuse for contravention if he or she did not understand the obligations imposed and the court is satisfied that the person ‘ought to be excused’: Family Law Act 1975 (Cth) s 112AC.

[198]Family Law Act 1975 (Cth) ss 70NFB, 112AD, 112AG.

[199] Ibid ss 70NFB(2), 70NFG, 112AD(2), 112AE. A term of imprisonment may only be imposed for contravention of an injunction which is not for the protection of a child if that contravention was intentional or fraudulent: Family Law Act 1975 (Cth) s 112AD(2A).

[200]Family Law Act 1975 (Cth) s 112AP.

[201] Ibid ss 70NAC(b), 112AB(1)(b).

[202] L Young and G Monahan, Family Law in Australia (7th ed, 2009), [16.8].

[203] R Alexander, Domestic Violence in Australia: The Legal Response (3rd ed, 2002), 64.

[204] L Young and G Monahan, Family Law in Australia (7th ed, 2009), [16.8].

[205] Conditions that may be imposed by a protection order under state and territory family violence legislation are discussed in Ch 11.

[206] These, and a number of other advantages of using protection orders under state and territory family violence legislation, are listed in R Alexander, ‘Family Violence’ in Springvale Legal Centre (ed) Lawyers Practice Manual Victoria (2009) 208–1, [2.8.317].

[207] Ibid, [2.8.602], app C.

[208] Ibid, [2.8.602]. Where a person is arrested under warrant, the person may be bailed to appear in court within five days or may be held in custody until the hearing of the application. R Alexander, ‘Family Violence’ in Springvale Legal Centre (ed) Lawyers Practice Manual Victoria (2009) 208–1, [2.8.601].

[209] Victoria Police, Code of Practice for the Investigation of Family Violence (2005), [5.3.2]. Not all state and territory family violence legislation provides a role for police in making an application for a protection order: see, eg, Domestic Violence and Protection Orders Act 2008 (ACT). The role of police in assisting persons to apply for a protection order under state and territory family violence legislation is discussed in Ch 9.

[210] R Alexander, ‘Family Violence’ in Springvale Legal Centre (ed) Lawyers Practice Manual Victoria (2009) 208–1, [2.8.802].

[211] Family Court of Australia, Form 4—Notice of Child Abuse or Family Violence <www.familylawcourts.gov.au> at 9 February 2010. See also R Alexander, ‘Family Violence’ in Springvale Legal Centre (ed) Lawyers Practice Manual Victoria (2009) 208–1, [2.8.802]. Form 4 is discussed in detail in Ch 30.

[212] R Alexander, ‘Family Violence’ in Springvale Legal Centre (ed) Lawyers Practice Manual Victoria (2009) 208–1, [2.8.803].

[213] See eg, Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 55, 77, 90; Domestic Violence and Protection Orders Act 2008 (ACT) s 81.

[214]Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 14; Family Violence Protection Act 2008 (Vic) s 123; Domestic and Family Violence Protection Act 1989 (Qld) s 80; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31; Restraining Orders Act 1997 (WA) s 61; Family Violence Act 2004 (Tas) s 35; Domestic Violence and Protection Orders Act 2008 (ACT) s 90; Domestic and Family Violence Act 2007 (NT) s 120. The consequences of contravening a protection order under state and territory family violence legislation, including offence provisions and maximum penalties, are discussed in Ch 12.

[215]Family Law Act 1975 (Cth) ss 68C, 114AA.

[216] L Young and G Monahan, Family Law in Australia (7th ed, 2009), [16.18]; R Alexander, Domestic Violence in Australia: The Legal Response (3rd ed, 2002), 72.

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

[218] Australian Law Reform Commission, Equality Before the Law: Justice for Women (Part 1), Report 69 (1994), [9.75].

[219] Consultation Paper, Ch 9.

[220] Family Law Council, Improving Responses to Family Violence in the Family Law System: An Advice on the Intersection of Family Violence and Family Law Issues (2009), [7.4.1].

[221] Ibid, [7.7].

[222] See Ch 2.

[223] Consultation Paper, Proposal 9–1, Question 9–1.

[224] Ibid, Proposal 9–1; Australian Law Reform Commission, Equality Before the Law: Justice for Women (Part 1), Report 69 (1994), Rec 9.12.

[225] Consultation Paper, Question 9–1.

[226] Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010; Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; Confidential, Submission FV 183, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Law Council of Australia, Submission FV 180, 25 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010; Women’s Legal Centre (ACT & Region) Inc, Submission FV 175, 25 June 2010; Peninsula Community Legal Centre, Submission FV 174, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Berry Street Inc, Submission FV 163, 25 June 2010; Confidential, Submission FV 162, 25 June 2010; UnitingCare Children Young People and Families, Submission FV 151, 24 June 2010; Justice for Children, Submission FV 148, 24 June 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010; Confidential, Submission FV 105, 6 June 2010; Better Care of Children, Submission FV 72, 24 June 2010; C Pragnell, Submission FV 70, 2 June 2010; P Easteal, Submission FV 40, 14 May 2010.

[227] Queensland Law Society, Submission FV 178, 25 June 2010.

[228] Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010.

[229] National Legal Aid, Submission FV 232, 15 July 2010; D Bryant, Chief Justice of the Family Court of Australia and J Pascoe, Chief Federal Magistrate of the Federal Magistrates Court of Australia, Submission FV 168, 25 June 2010.

[230] D Bryant, Chief Justice of the Family Court of Australia and J Pascoe, Chief Federal Magistrate of the Federal Magistrates Court of Australia, Submission FV 168, 25 June 2010.

[231] National Legal Aid, Submission FV 232, 15 July 2010; Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Women’s Legal Service Victoria, Submission FV 189, 25 June 2010.

[232] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010.

[233] D Bryant, Chief Justice of the Family Court of Australia and J Pascoe, Chief Federal Magistrate of the Federal Magistrates Court of Australia, Submission FV 168, 25 June 2010.

[234] Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010; Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010; National Council of Single Mothers and their Children Inc, Submission FV 144, 24 June 2010.

[235] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010.

[236] Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010.

[237] Women’s Legal Services NSW, Submission FV 182, 25 June 2010.

[238] Ibid. See Ch 18 for discussion on practice in state and territory courts relating to consent to protection orders on a ‘without admissions’ basis and undertakings.

[239] Ibid.

[240] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010.

[241] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010.

[242] Women’s Legal Services NSW, Submission FV 182, 25 June 2010.

[243] Law Council of Australia, Submission FV 180, 25 June 2010.

[244] Women’s Legal Services NSW, Submission FV 182, 25 June 2010.

[245] Women’s Legal Services Australia, Submission FV 225, 6 July 2010.

[246] Women’s Legal Services NSW, Submission FV 182, 25 June 2010.

[247] National Legal Aid, Submission FV 232, 15 July 2010; Law Council of Australia, Submission FV 180, 25 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010; Peninsula Community Legal Centre, Submission FV 174, 25 June 2010.

[248] National Legal Aid, Submission FV 232, 15 July 2010.

[249] Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Law Council of Australia, Submission FV 180, 25 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010.

[250] Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Queensland Law Society, Submission FV 178, 25 June 2010.

[251] Women’s Legal Services Australia, Submission FV 225, 6 July 2010.

[252] Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010.

[253] Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010.

[254] Rec 12–1.

[255] Rec 30–18(a).

[256] Rec 30–18(b).

[257]Family Law Act 1975 (Cth) s 68B(1).

[258] For a discussion of persons protected in state and territory legislation, see Ch 7.

[259]Family Law Regulations 1984 (Cth) reg 19 prescribes the following laws for the purpose of s 114AB: Crimes (Domestic and Personal Violence) Act 2007 (NSW); Family Violence Protection Act 2008 (Vic); Domestic and Family Violence Protection Act 1989 (Qld); Peace and Good Behaviour Act 1982 (Qld); Restraining Orders Act 1997 (WA) pts 1–6; Domestic Violence Act 1994 (SA); Family Violence Act 2004 (Tas); Justices Act 1959 (Tas) pt XA; Domestic Violence and Protection Orders Act 2008 (ACT); Domestic and Family Violence Act 2007 (NT); Domestic Violence Act 1995 (NI).

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

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

[262] Consultation Paper, Question 9–2.

[263] Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010; Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Law Council of Australia, Submission FV 180, 25 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010; A Harland, Submission FV 80, 2 June 2010.

[264] Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010; Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010; Confidential, Submission FV 184, 25 June 2010; Law Council of Australia, Submission FV 180, 25 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010; Women’s Legal Centre (ACT & Region) Inc, Submission FV 175, 25 June 2010.

[265] Consultation Paper, Question 9–3.

[266] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Confidential, Submission FV 183, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Law Council of Australia, Submission FV 180, 25 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010 Confidential, Submission FV 164, 25 June 2010; Berry Street Inc, Submission FV 163, 25 June 2010; Confidential, Submission FV 162, 25 June 2010; The Central Australian Aboriginal Family Legal Unit Aboriginal Corporation, Submission FV 149, 25 June 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010; National Council of Single Mothers and their Children Inc, Submission FV 144, 24 June 2010; Confidential, Submission FV 130, 21 June 2010; Confidential, Submission FV 105, 6 June 2010; Confidential, Submission FV 82, 2 June 2010 C Pragnell, Submission FV 70, 2 June 2010.

[267] J Stubbs, Submission FV 186, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Law Council of Australia, Submission FV 180, 25 June 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010.

[268] Confidential, Submission FV 184, 25 June 2010; Law Council of Australia, Submission FV 180, 25 June 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010; National Council of Single Mothers and their Children Inc, Submission FV 144, 24 June 2010.

[269] National Legal Aid, Submission FV 232, 15 July 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Law Council of Australia, Submission FV 180, 25 June 2010.

[270] Queensland Law Society, Submission FV 178, 25 June 2010.

[271] National Legal Aid, Submission FV 232, 15 July 2010.

[272] Women’s Legal Services NSW, Submission FV 182, 25 June 2010.

[273] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010.

[274] Women’s Legal Service Victoria, Submission FV 189, 25 June 2010.

[275]Family Law Act 1975 (Cth) s 114AB(1).

[276] See Australian Government Solicitor, Domestic Violence Laws in Australia (2009), [6.2.14], and discussion in Chs 2 and 23.

[277]Family Law Act 1975 (Cth) s 68Q(1).

[278] Ibid s 68R(1)(c). Courts with jurisdiction under pt VII of the Family Law Act include: the Family Court of Australia, each Family Court of a state, the Supreme Court of the Northern Territory, the Federal Magistrates Court, and, subject to some conditions, courts of summary jurisdiction of each state and territory: Family Law Act 1975 (Cth) ss 69H and 69J.

[279]Family Law Act 1975 (Cth) s 68R(3).

[280] Ibid s 68R(4).

[281] Ibid s 68R(5)(c). The operation of s 68R in relation to parenting orders made under the Family Law Act is discussed in Ch 16.

[282] See, eg, Family Violence Act 2004 (Tas) s 18(1)(c); Domestic Violence and Protection Orders Act 2008 (ACT) ss 31, 47(1)(f); 71; Domestic and Family Violence Act 2007 (NT) s 19(2)(a).

[283]Family Law Act 1975 (Cth) s 68P(2).

[284] Ibid s 68P(3).

[285]Australian Constitution s 109. The constitutional framework is discussed in Ch 2.

[286] Consultation Paper, Question 9–4.

[287] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Law Council of Australia, Submission FV 180, 25 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010.

[288] Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Law Council of Australia, Submission FV 180, 25 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010.

[289] Consultation Paper, Proposal 9–2. Ch 16 discusses s 68R in the context of parenting orders.

[290]Family Law Act 1975 (Cth) s 68R(3).

[291] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010; J Stubbs, Submission FV 186, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; Confidential, Submission FV 183, 25 June 2010; Law Council of Australia, Submission FV 180, 25 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; The Central Australian Aboriginal Family Legal Unit Aboriginal Corporation, Submission FV 149, 25 June 2010; Justice for Children, Submission FV 148, 24 June 2010; National Council of Single Mothers and their Children Inc, Submission FV 144, 24 June 2010; Confidential, Submission FV 82, 2 June 2010.

[292] Women’s Legal Services NSW, Submission FV 182, 25 June 2010.

[293] National Legal Aid, Submission FV 232, 15 July 2010.

[294] A Brunacci, Submission FV 97, 4 June 2010.

[295] Ibid.

[296] See Rec 30–18.

[297] See Ch 30 and Rec 30–1.

[298] See Chs 4–7.

[299]Family Law Act 1975 (Cth) s 68R(3).

[300] Recommendations 30–8 and 30–9.

[301]In the Marriage of Gillie (1978) 30 FLR 565. The Family Court considered, but did not make, an order under s 114(2) in In the Marriage of Hayne (1994) FLC ¶92–512: A Dickey, ‘Relief from the Performance of Marital Obligations’ (1995) 69 Australian Law Journal 402, 402.

[302]Family Law Act 1975 (Cth) s 8(2).

[303]R v L (1991) 174 CLR 379, 398.

[304] Ibid, 390.

[305] Ibid.

[306] Ibid, 387.

[307] See Ch 24.

[308] Consultation Paper, Proposal 9–3.

[309] Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010; National Legal Aid, Submission FV 232, 15 July 2010; Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010; Women’s Legal Service Victoria, Submission FV 189, 25 June 2010; J Stubbs, Submission FV 186, 25 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; Confidential, Submission FV 183, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Law Council of Australia, Submission FV 180, 25 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; D Bryant, Chief Justice of the Family Court of Australia and J Pascoe, Chief Federal Magistrate of the Federal Magistrates Court of Australia, Submission FV 168, 25 June 2010; Confidential, Submission FV 164, 25 June 2010; Berry Street Inc, Submission FV 163, 25 June 2010; Confidential, Submission FV 162, 25 June 2010; The Central Australian Aboriginal Family Legal Unit Aboriginal Corporation, Submission FV 149, 25 June 2010; National Council of Single Mothers and their Children Inc, Submission FV 144, 24 June 2010; N Ross, Submission FV 129, 21 June 2010; Confidential, Submission FV 96, 2 June 2010; Confidential, Submission FV 82, 2 June 2010; Gosnells Community Legal Centre Inc, Submission FV 56, 31 May 2010.

[310] Women’s Legal Service Queensland, Submission FV 185, 25 June 2010.

[311] Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010.

[312] Women’s Legal Services NSW, Submission FV 182, 25 June 2010.