Keith Mack
Injunctions are a powerful tool in family law, enabling individuals to protect their rights and interests. Injunctions are court orders that restrict someone from doing something or require them to do something. In the context of family law, they are used to prevent harm, including harassment, intimidation, and domestic violence, and to protect individuals' health, safety, and well-being. There are two main types of injunctions in family law: non-molestation orders and occupation orders. Non-molestation orders aim to prevent threatening or violent behaviour, while occupation orders determine who can live in the family home. Injunctions can have significant implications in family law cases, particularly regarding child custody and placement, and violating an injunction can result in severe penalties, including civil and criminal charges.
| Characteristics | Values |
|---|---|
| Purpose | To prevent someone from causing harm and/or restricting occupation rights to the family home |
| Who can apply | Boyfriend, girlfriend, partner or a person you are in, or have been in a relationship with, for more than 6 months; Close family member; Husband, wife or civil partner; Former husband, wife or civil partner; Cohabitees |
| Types | Non-molestation order; Occupation order; Civil injunction (restraining order); Temporary Restraining Order (TRO); Standing Order; Temporary Injunction |
| Validity | Normally valid for a specified period of time, although you can apply to renew them or make the injunction period ‘until further order’ which makes it indefinite |
| Custody | Entry of any injunction can raise significant concerns about the safety of a child and the child’s other parent, thereby potentially having a significant impact on issues of custody and placement |
| Violation | Violations of an injunction are charged as a crime and can carry civil penalties like fines, fees, or an award of attorney’s fees, as well as criminal charges like jail time |
| Arrest | Under Sections 68C and 114AA of the Family Law Act, a police officer who believes on reasonable grounds that a person has breached a Family Law Act personal protection injunction can arrest the person without a warrant |
| Application | To apply for an injunction, you must be an ‘associated person’ and go to ‘closed’ court |
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What You'll Learn
Non-molestation orders
In the context of family law, an injunction is a legal tool to prevent someone from causing further harm and/or restricting occupation rights to a shared family home. Non-molestation orders are one of the two main injunctions available to clients, the other being occupation orders.
To obtain a non-molestation order, an applicant must show that they have suffered threatening violence, or that they wish to prevent a person from harassing, pestering, or intimidating them. Non-molestation orders are typically in effect for a maximum of four years, except under special circumstances.
A non-molestation order ceases to have effect if the family proceedings are withdrawn or dismissed. Violations of a non-molestation order are considered a criminal offence.
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Occupation orders
An occupation order is a legal injunction that can be sought in the context of family law to restrict someone's occupation rights to a shared home. This type of order is typically sought in cases of domestic abuse, where one party wishes to continue living in the property without the abuser. Occupation orders can also be used to define who can enter certain parts of the home.
To apply for an occupation order, one must complete the FL401 form and submit it to the court for consideration. The parties involved must be ''associated' under the Family Law Act 1996, and the property must be, or have been, the home of both parties. The applicant must have a legal or beneficial interest in the property or a right to occupy it. This includes ''home rights', where an individual has marital rights to the property despite not being the legal owner.
Before granting an occupation order, the court will apply the ''balance of harm' test, assessing the potential harm to the applicant, respondent, and any children involved if the order is not made. The court will also consider the housing needs and financial resources of both parties and the potential impact of the order on their health and well-being. It is important to note that an occupation order does not change the ownership of the property but rather determines who can remain living in it temporarily.
In addition to the balance of harm test, the court may also apply a core criteria test, taking into account factors such as the housing needs and resources of both parties and any relevant children, as well as the severity and frequency of abuse. Occupation orders are typically a short-term solution and do not affect the final settlement regarding the property.
It is worth noting that legal aid is available for occupation orders, and financial aid may also be accessible to support the process.
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Custody and placement
An injunction is a court order that restricts someone from doing something. In the context of family law, an injunction is a powerful tool that protects the rights and interests of the parties involved in litigation. It is meant to maintain the status quo and prevent harm to the parties involved.
Injunctions are often used in family law cases involving divorce, child custody, and domestic violence. In such cases, the court may issue an injunction to restrict certain behaviours or actions of one or both parties to ensure the safety and well-being of the individuals involved, especially the children.
In cases where there are concerns about the safety of a child and the other parent, an injunction may be granted to prohibit certain conduct by one of the parents. This could include restricting communication between the parents or limiting their physical proximity to each other. The court may also order that the parent who engaged in domestic abuse have only supervised placement with their child until they complete a certified violence prevention or treatment program.
The presence of an injunction can have a significant impact on issues of custody and placement. It may raise concerns about the safety of the child and the ability of the parent to provide a safe and stable environment. As a result, the court may adjust the custody and placement order to accommodate the injunction, taking into account the unique circumstances of each family. This could include granting sole legal custody to one parent and/or limiting the other parent's placement time with the child.
It is important to take injunctions seriously as violations are considered a crime. If you are considering filing for an injunction or have been served with injunction-related court documents, it is advisable to consult an experienced attorney who can guide you through the process and address the potential impact on custody and placement arrangements.
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Temporary injunctions
A temporary injunction is an injunction that lasts during the pendency of a case. It is issued after a court hearing where both parties are present and confirms a temporary restraining order (TRO) into a lasting injunction. A TRO is a quick fix injunction that is only valid for 14 days and can be extended for a total of 28 days. It must be requested by a party and typically applies to both parties.
To obtain a temporary injunction, a party must request it and prove that it is in the best interest of the child or that it is necessary to prevent significant harm. Violating a temporary injunction can carry legal repercussions, including civil penalties such as fines or criminal charges such as jail time.
In the context of family law, an injunction is meant to prevent someone from causing further harm and/or restricting occupation rights to the family home. The two main types of injunctions available in family law are Non-Molestation Orders and Occupation Orders. Non-Molestation Orders are the most common and are sought to prevent threatening violence, harassment, pestering, or intimidation. Occupation Orders apply when a party has certain Home Rights to a property, even if they are are not the legal owner.
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Civil and criminal penalties
Injunctions in family law are court orders that restrict someone from doing something harmful to another person. Non-molestation orders and occupation orders are the two main types of injunctions available in family law.
If a non-molestation order is breached by the abuser, they will be committing a criminal offence and the police can get involved. However, the victim may still choose to take the abuser to civil court for breaking the order. Breaching an occupation order can lead to the arrest of the offending individual.
Violations of injunctions are charged as crimes, and can have serious implications on issues of custody and placement. The court may grant sole legal custody to the other parent and/or limit the respondent's placement time with the child.
Injunctions are typically valid for a specified period, usually not more than four years, unless there are special circumstances. However, non-molestation orders can be extended indefinitely, while occupation orders cannot be extended beyond 12 months if the abuser has a legal right to stay in the home.
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Frequently asked questions
An injunction in family law is a court order that requires someone you are associated with to do or not do something. The purpose of an injunction is to maintain the status quo and prevent harm.
There are two main types of injunctions in family law: non-molestation orders and occupation orders. Non-molestation orders aim to prevent your current or former partner/spouse from threatening or using violence against you or your child. Occupation orders determine who can live in the family home.
To apply for an injunction, you must be an "associated person", meaning you and your abuser must be connected in at least one of the following ways: you are or were married, you are or were in a civil partnership, you live or lived together, you are blood relations, you are engaged or were engaged, you have children together, or you are in an "intimate relationship of significant duration".
