Family Law Topic 10 1 TOPIC 10: INJUNCTIONSAND FAMILY VIOLENCE ORDERS.

Family Law Topic 10Family Law Topic 10 11

TOPIC 10:TOPIC 10:

INJUNCTIONS INJUNCTIONS

ANDAND

FAMILY VIOLENCE FAMILY VIOLENCE ORDERSORDERS


PRELIMINARY MATTERSPRELIMINARY MATTERS(a) What is an injunction?(a) What is an injunction?

Injunction can serve one of either Injunction can serve one of either two functionstwo functions form of relief in own right (eg form of relief in own right (eg

permanent)permanent) secondary form of relief (eg secondary form of relief (eg

interlocutory)interlocutory)


PRELIMINARY MATTERSPRELIMINARY MATTERS(b) When should a court grant (b) When should a court grant

(interlocutory) injunctions?(interlocutory) injunctions?

general principlesgeneral principles applicant has an arguable caseapplicant has an arguable case convenience/justiceconvenience/justice damages adequate?damages adequate?


PRELIMINARY MATTERSPRELIMINARY MATTERS(c) What type of injunctions can be (c) What type of injunctions can be

granted?granted? Independent, permanent and perpetualIndependent, permanent and perpetual Ancillary, interim and interlocutoryAncillary, interim and interlocutory

(i) ‘Mareva’ injunction(i) ‘Mareva’ injunction(ii) ‘Anton Piller’ order(ii) ‘Anton Piller’ order

- extremely strong case- extremely strong case- damage very serious- damage very serious- clear possession evidence- clear possession evidence- real possibility of destruction- real possibility of destruction


(1) Independent (1) Independent Injunctions Under Injunctions Under FLAFLA(a)(a) Scope of s 114(1)Scope of s 114(1)

discretionarydiscretionary as it thinks properas it thinks proper paragraphs (a) - (f)paragraphs (a) - (f)

(a)(a)personal protection order (home)personal protection order (home)(b)(b) restraining order (home)restraining order (home)(c)(c)restraining order (work)restraining order (work)(d)(d) marital relationshipmarital relationship(e)(e)property injunctionproperty injunction(f)(f) exclusive occupation orderexclusive occupation order


(1) Independent (1) Independent Injunctions Under Injunctions Under FLAFLA(a)(a) Scope of s 114(1)Scope of s 114(1)

(i) personal protection and restraining (i) personal protection and restraining orders: s 114(1)(a)-(c)orders: s 114(1)(a)-(c)

(ii) protection of marital relationship: s (ii) protection of marital relationship: s 114(1)(d)114(1)(d)

(iii) property injunctions: (iii) property injunctions: s 114(1)(e)s 114(1)(e)(iv) exclusive occupation order: s 114(1)(f)(iv) exclusive occupation order: s 114(1)(f)(v) third parties and s 114(1)? - sham or (v) third parties and s 114(1)? - sham or

puppet? puppet? (but now note effect of Pt VIIIAA)(but now note effect of Pt VIIIAA)(vi) effect of s 114(2)?(vi) effect of s 114(2)?


(1) Independent Injunctions Under (1) Independent Injunctions Under FLAFLA(a)(a) Scope of s 114(1)Scope of s 114(1)Impact of Pt VIIIAA?Impact of Pt VIIIAA?90AF(1) - in 90AF(1) - in proceedings under s 114 under s 114 court may: may: make an order restraining a person from repossessing make an order restraining a person from repossessing

property of a party to a of a party to a marriage; or ; or grant an injunction restraining a person from commencing grant an injunction restraining a person from commencing

legal legal proceedings against a party to a against a party to a marriage. .

90AF(2) - in 90AF(2) - in proceedings under s 114, under s 114, court may make any may make any other order, or grant any other injunction that: other order, or grant any other injunction that:

directs a directs a third party to do a thing in relation to the to do a thing in relation to the property of a party to the of a party to the marriage; or ; or

alters the rights, liabilities or alters the rights, liabilities or property interests of a of a third party in relation to the in relation to the marriage. .

http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s4.html#proceedings

http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s20.html#court

http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s4.html#property

http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s90md.html#marriage





http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s90ab.html#third_party




http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s4.html#interests

http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s90ab.html#third_party



(1) Independent Injunctions Under (1) Independent Injunctions Under FLAFLA(a)(a) Scope of s 114(1)Scope of s 114(1)90AF(3) - 90AF(3) - court may only make an order or grant an may only make an order or grant an injunction under 90AE(1)/(2) if: injunction under 90AE(1)/(2) if: making of order, or granting of injunction, is making of order, or granting of injunction, is

reasonably necessary etc to effect a division of reasonably necessary etc to effect a division of property between the parties to the between the parties to the marriage

if order or injunction concerns a debt of a party to if order or injunction concerns a debt of a party to the the marriage - it is not foreseeable at time order - it is not foreseeable at time order made, or the injunction granted, that to make the , or the injunction granted, that to make the order/grant the injunction would result in the debt order/grant the injunction would result in the debt not being paid in fullnot being paid in full

third party has been accorded procedural fairness in third party has been accorded procedural fairness in relation to the making of the order or injunctionrelation to the making of the order or injunction





http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s4.html#made


(1) Independent Injunctions Under (1) Independent Injunctions Under FLAFLA(a)(a) Scope of s 114(1)Scope of s 114(1)90AF(3)90AF(3) for an injunction/order under s 114(1) - for an injunction/order under s 114(1) - court is is

satisfied that, in all the circumstances, it is satisfied that, in all the circumstances, it is proper to make the order/grant injunction proper to make the order/grant injunction

for an injunction under s 114(3) - for an injunction under s 114(3) - court is is satisfied that, in all the circumstances, it is just or satisfied that, in all the circumstances, it is just or convenient to grant injunctionconvenient to grant injunction

court is satisfied that order or injunction takes court is satisfied that order or injunction takes into account the matters mentioned in into account the matters mentioned in

subsection (4).subsection (4).




(1) Independent Injunctions Under (1) Independent Injunctions Under FLAFLA(a)(a) Scope of s 114(1)Scope of s 114(1)90AF(4) - the matters are as follows:90AF(4) - the matters are as follows: taxation effect (if any) on the parties taxation effect (if any) on the parties the taxation effect (if any) on the third partythe taxation effect (if any) on the third party social security effect (if any) on the partiessocial security effect (if any) on the parties third party's administrative costs in relation to the third party's administrative costs in relation to the

order/injunctionorder/injunction if concerns a debt of a party - the capacity of a party to if concerns a debt of a party - the capacity of a party to

repay the debt after the order is maderepay the debt after the order is made economic, legal or other capacity of third party to comply economic, legal or other capacity of third party to comply

with the order/injunctionwith the order/injunction if, as a result of the third party being accorded if, as a result of the third party being accorded

procedural fairness in relation to the making of the order, procedural fairness in relation to the making of the order, the third party raises any other matters - those mattersthe third party raises any other matters - those matters


(1) Independent (1) Independent Injunctions Under Injunctions Under FLAFLA(b)(b) Scope of s 68B(1)Scope of s 68B(1)

Part VII - childrenPart VII - children discretionarydiscretionary as it considers proper for the welfare of as it considers proper for the welfare of

the childthe child paragraphs (a) - (d)paragraphs (a) - (d)

(a)(a)personal protection (child)personal protection (child)(b)(b) personal protection (carer)personal protection (carer)(c)(c)restraining order (child)restraining order (child)(d)(d) restraining order (carer)restraining order (carer)


(a)(a) Scope of s 114(3)Scope of s 114(3) discretionarydiscretionary interlocutory or otherwiseinterlocutory or otherwise just and convenientjust and convenient unconditionally or on termsunconditionally or on terms

Effect re third parties?Effect re third parties? Ascot InvestmentsAscot Investments (1981) (1981) BUT now: Pt VIIIAABUT now: Pt VIIIAA

(2) Ancillary Injunctions (2) Ancillary Injunctions Under the Under the FLAFLA


(b)(b) Scope of s 68B(2)Scope of s 68B(2) discretionarydiscretionary in relation to a childin relation to a child interlocutory or otherwiseinterlocutory or otherwise just and convenientjust and convenient unconditionally or on terms: unconditionally or on terms:

s68B(3)s68B(3)

(2) Ancillary Injunctions (2) Ancillary Injunctions Under the Under the FLAFLA


(a)(a) Property Injunctions: Property Injunctions: s 38(1)(h)s 38(1)(h)(i)(i) protection of property or resources; protection of property or resources;

oror(ii)(ii) to aid enforcementto aid enforcement note: Part III ‘hurdles’note: Part III ‘hurdles’

(b) Other Part III Injunctions: (b) Other Part III Injunctions: s 38(1)(k)s 38(1)(k) any other injunctionany other injunction necessary to do justicenecessary to do justice

(3) Injunctions Under the (3) Injunctions Under the PPRARA


(c)(c) Personal Protection: Personal Protection:

s 53s 53four categoriesfour categories::

(a)(a)personal protectionpersonal protection

(b)(b) restraining order restraining order (residence)(residence)

(c)(c)restraining order (work)restraining order (work)

(d)(d) exclusive occupation exclusive occupation orderorder

(3) Injunctions Under the (3) Injunctions Under the PPRARA


(a)(a) IntroductionIntroduction New Act: New Act: Crimes (Domestic and Crimes (Domestic and

Personal Violence) ActPersonal Violence) Act 2007 2007 (10.03.08) (10.03.08) (formerly Part 15A (formerly Part 15A Crimes ActCrimes Act 1900) 1900) note (since 2000) distinguish between note (since 2000) distinguish between

ADVO and an APVOADVO and an APVO ““reasonable grounds to reasonable grounds to fear”fear” is the key is the key they are not criminal proceedings they are not criminal proceedings

unless there is a breach of order (or unless there is a breach of order (or stalking etc)stalking etc)

(1) Apprehended Domestic (1) Apprehended Domestic Violence LawsViolence Laws


(a)(a) IntroductionIntroduction www.lawlink.nsw.gov.au/lc.nsf/pages/www.lawlink.nsw.gov.au/lc.nsf/pages/

avo_indexavo_index http://www.lawlink.nsw.gov.au/lawlink/vaw/dvguidelines.nsf/pages/http://www.lawlink.nsw.gov.au/lawlink/vaw/dvguidelines.nsf/pages/

whatiswhatis

Domestic Violence Advocacy Domestic Violence Advocacy Service: 1800 810 784Service: 1800 810 784

DoCS Domestic Violence Line: DoCS Domestic Violence Line: 1800 656 4631800 656 463

Victims Support line: 1800 633 063Victims Support line: 1800 633 063



(a)(a) IntroductionIntroduction Meaning of ‘domestic relationship’ s 5Meaning of ‘domestic relationship’ s 5 Meaning of ‘relative’ s 6Meaning of ‘relative’ s 6 s 9(1) – Objects:s 9(1) – Objects: ensure ensure

safety/protection, reduce/prevent safety/protection, reduce/prevent violence, consistent with international violence, consistent with international obligations (DEVAW and UNCROC) obligations (DEVAW and UNCROC)

s 9(2) - Aims achieved by:s 9(2) - Aims achieved by: court orders, court orders, access to justiceaccess to justice

s 9(3) – Parliament recognises:s 9(3) – Parliament recognises: domestic domestic violence is unacceptable …violence is unacceptable …



(a)(a) IntroductionIntroduction Offences:Offences: s 13 s 13 stalking stalking (5 years/50pu)(5 years/50pu)

““stalks or intimidates … with the stalks or intimidates … with the intention”intention”

Offences:Offences: s 14 s 14 contravening AVOcontravening AVO (2 (2 years/50pu)years/50pu)““knowingly contravenes a prohibition or knowingly contravenes a prohibition or restriction specified …”restriction specified …”



(b) Complaint procedure (b) Complaint procedure – – Pt 4 + 10 Pt 4 + 10 (ADVO)(ADVO)

Application: Application: s 15 (+ ss 47-87)s 15 (+ ss 47-87) Applicant:Applicant: s 15 ‘domestic relationship’ s 15 ‘domestic relationship’

requirement ; s 48(2) application by ‘(a) requirement ; s 48(2) application by ‘(a) a person for whose protection the order a person for whose protection the order would be made, or (b) a police officer”would be made, or (b) a police officer”

Circumstances in which police must Circumstances in which police must make application for order:make application for order: s 49 s 49

Open court:Open court: s 58 s 58



(b) Complaint procedure – (b) Complaint procedure – Pt 4 + 10 (ADVO)Pt 4 + 10 (ADVO) Orders by consent:Orders by consent: s 78 s 78 Court may make ADVO:Court may make ADVO: s 16(1) “if it is s 16(1) “if it is

satisfied on the balance of probabilities satisfied on the balance of probabilities … reasonable grounds to fear and in fact … reasonable grounds to fear and in fact fears …”fears …”



(b) Complaint procedure – (b) Complaint procedure – Pt 4 + 10 (ADVO)Pt 4 + 10 (ADVO) Matters to be considered by court:Matters to be considered by court: s s

17(1) “safety and protection of the 17(1) “safety and protection of the protected person”; s 17(2) plus: protected person”; s 17(2) plus: (a) effects of restricting access to def’s (a) effects of restricting access to def’s premisespremises(b) any ‘hardship’ (focus on protected (b) any ‘hardship’ (focus on protected person)person)(c) accommodation needs of all relevant (c) accommodation needs of all relevant parties (again there is a focus on parties (again there is a focus on protected person) protected person)



(c)(c) Terms of an orderTerms of an order Duration:Duration: s 79 “(1) for such period as s 79 “(1) for such period as

is specified … by the court” (2) “as is specified … by the court” (2) “as long as necessary” (3) if not specified long as necessary” (3) if not specified - 12 months- 12 months

Content and effect of AVOsContent and effect of AVOs: Pt 8 : Pt 8 prohibitions and restrictions:prohibitions and restrictions: s 35 s 35 (approaches, restricting access, (approaches, restricting access, restricting possession of firearms, restricting possession of firearms, restricting/interfering with property, restricting/interfering with property, restricting specified behaviour)restricting specified behaviour)



(d)(d) Criminal Offences Criminal Offences contravention of ADVO/APVO (s 14)contravention of ADVO/APVO (s 14) stalking, intimidation (s 13)stalking, intimidation (s 13) appeals to District Courtappeals to District Court





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Family Law Topic 10 1 TOPIC 10: INJUNCTIONSAND FAMILY VIOLENCE ORDERS.

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