Family violence

In most cases, if immediate protection is required, it is advisable to contact police and to seek an intervention order under the Family Violence Protection Act 2008 (Vic) (‘FVP Act’).

However, in some cases, where there are other family law issues involved, it may be sufficient to apply for an injunction (also known as a restraining order) under sections 68B or 114 of the FL Act.

An injunction is available to people who:

• are married;
• are separated or divorced;
• are in a de facto relationship (heterosexual or same-sex relationship);
• have children;
• do not have children (only in certain cases).

Unlike intervention orders under the FVP Act, injunctions cannot be obtained under the FL Act against other family members (e.g. siblings, uncles, in-laws). Also, injunctions cannot be obtained under the FL Act for people in an intimate relationship (unless they have a child together).

In this section, ‘husband’ means legal or de facto husband and ‘wife’ is a legal or de facto wife. ‘De facto relationship’ is defined in the FL Act (s 4AA) and includes same-sex relationships.

While injunctions cover many situations, they can be granted for the personal protection of a child or a party (e.g. to stop a person from harassing, assaulting or approaching another person) or to stop a person from entering particular premises (e.g. an injunction can direct a husband to stay away from where his wife lives or works or where a child attends childcare or school).

Where the situation at home is difficult and children are being adversely affected, a person can obtain an injunction for the sole use and exclusive occupancy of the family home, irrespective of who owns the property. There does not need to be physical violence. The court must consider the atmosphere at home, the means and needs of both parties and any children, and the hardship to either person if one is forced to leave the home.

Such injunctions are difficult to obtain. Even when granted, if the family home is jointly owned, for example, by the husband and wife, there will have to be a property settlement in the future. If the parties are married, the property settlement is determined under the FL Act. If they are not married, the property division will be determined either under the FL Act or state law depending on the facts. (See ‘Property’ in Chapter 4.1: Marriage and divorce, and Chapter 4.3: Same-sex and de facto couples and families.)

If there is no physical violence or psychological abuse, it may not be possible for one spouse to evict the other. The parties can then separate and remain under one roof, or one party may have to leave the home and seek a final property settlement. It is important to note that the party who leaves does not forfeit legal entitlement to a property settlement simply by leaving.

Applications for injunctions are filed in the Federal Circuit and Family Court of Australia (FCFCOA) (www.fcfcoa.gov.au) or the Magistrates’ Court (www. mcv.vic.gov.au). Division One of the FCFCOA (formerly the Family Court of Australia) mostly only hears complex cases so all applications for injunctions commence in Division Two of the FCFCOA (formerly the Federal Circuit Court of Australia). Division Two has registries in Melbourne and Dandenong and also sits in various country circuits. The Magistrates’ Court sits in various CBD, suburban, regional and rural locations.

Application forms for injunctions can be obtained from the registry of FCFCOA or from a local Magistrates’ Court. Applications have a filing fee for which a reduction can be obtained in cases of Centrelink benefits or financial hardship. The hearing date for an injunction depends on the amount of work the court has before it. When a case is urgent, the court tries to hear the matter ex parte or within a few days of the application being filed. Otherwise, it may be eight to 10 weeks from the date of filing the application before the case can be heard. This is one reason why seeking an intervention order under the FVP Act may be more appropriate.

Does the respondent have to attend court?

In most cases, applications for injunctions will only be heard by the court after the respondent has been served with the application and the affidavit. Unlike applications for intervention orders under state law, police are not involved with applications for injunctions and do not effect service. That must be done by a third party, usually a paid process server.

In urgent cases, applications for injunctions may be heard ex parte (i.e. without the respondent being present). The court can make an ex parte order in favour of the applicant against the respondent until a further order is made or until a specified time. Rules of the court specify the circumstances and evidence required when seeking an ex parte order.

The court is usually reluctant to hear an ex parte application for an injunction when a spouse seeks an order directing the other spouse to vacate the family home. The court is more likely to hear an ex parte application for an injunction to restrain a person from intimidating, assaulting or approaching another person.

If a spouse needs an ex parte or an urgent interim injunction, they must file an application seeking interim orders, together with an affidavit setting out the reasons for seeking an injunction. Applying for an intervention order may be preferable as it can provide immediate protection, involves far less bureaucracy and paperwork, and involves no filing fees. The applicant should support the allegations by affidavits with other evidence if available (e.g. from eye witnesses to threats or violence, witnesses to her physical condition, or medical evidence by a doctor). If the spouse is only seeking final orders, they need only file the appropriate application and no other supporting material, unless the application is contested. Given the time lag, this is clearly not appropriate for urgent cases.

If ex parte orders are sought, the documents filed will be referred to the registrar of the Magistrates’ Court or a registrar of the FCFCOA. The registrar will recommend whether or not the ex parte application will proceed to be heard before a magistrate (state court) or a senior registrar or judge (FCFCOA). This recommendation operates as a clearing house to ensure the courts do not get cluttered with applications that are not urgent.

Even if the court refuses to grant the injunction ex parte it may grant a speedy hearing, subject to service upon the other spouse. It usually takes weeks before the application is heard, so it is worth pursuing promptly. If protection is sought urgently, again an intervention order is usually the far better option. It is advisable to talk to a lawyer about which course of action to take (see Chapter 2.4: Legal services that can help).

Police applying for injunctions

Police cannot apply for injunctions under the FL Act. The person who has experienced the threats or violence must apply – with or without a lawyer.

Breaching or contravening a FL Act injunction is not a criminal offence.

The person who has experienced the violence or breach of the injunction has to return to court to institute contravention or contempt proceedings; the police do not do this. This is another reason why an injunction is far less effective than an intervention order.

The punishment for contravening a FL Act injunction can include a fine and/or imprisonment. A person who persistently breaches a FL Act injunction may be liable for the charge of contempt.

As with intervention orders under state law, an automatic power of arrest is attached to all FL Act injunctions that provide for the personal protection of a person. The power of arrest is valid for the duration of the injunction. The power of arrest only attaches to injunctions that expressly refer to the ‘personal protection’ of a party. This includes an order for sole use and exclusive occupancy or an order restraining entry to or remaining on specified premises, but only if that order specifically uses the words ‘personal protection’.

This power authorises a state or federal police officer to arrest the respondent without warrant if that officer reasonably believes that the respondent has breached an injunction by causing or threatening to cause bodily harm, or by harassing, molesting or stalking the protected person. In reality, the state police often refuse to arrest or to enforce injunctions under the FL Act and defer to federal police.

As the FL Act is federal law, a FL Act injunction is portable and is automatically valid in all parts of Australia (but not overseas) unless discharged or varied by a court exercising jurisdiction under the FL Act. Unlike a FVP Act intervention order, a FL Act injunction operates indefinitely unless the court prescribes a set period of time (which is rare) or is discharged by a court.

There have been two recent comprehensive reviews of Australia’s family law system. There was Report 135 from the Australian Law Reform Commission (ALRC), Family Law for the Future: An Inquiry into the Family Law System, which was tabled in federal parliament in April 2019; it is available at www. alrc.gov.au. The federal government responded in March 2021 with Government Response to ALRC Report 135 (available at www.ag.gov.au). There were also two interim reports and a final report from the Joint Select Committee on Australia’s Family Law System; the final report was released in November 2021.

A few recommendations from both these reports have been implemented. The Family Law Amendment Act 2023 (Cth) was passed in October 2023 and will come into effect in May 2024. Changes include how the FCFCOA is to determine the best interests of children where family violence is involved. The changes also include looking at any history of family violence and any past or current protection orders like intervention orders. For an overview of the recent changes to the FL Act, see Chapter 4.2: Parental responsibilities and child support.

On 1 September 2021, the Federal Circuit Court and the Family Court merged into the new Federal Circuit and Family Court of Australia (FCFCOA).

The FCFCOA has two Divisions:

• Division One absorbed the former Family Court cases, hears more complex cases and also operates as an appeal division in all family law matters.
• Division Two absorbed the former Federal Circuit Court cases and has jurisdiction in general federal law matters including family law and child support.

The FCFCOA has a totally new case management system with new Rules, new judicial officers, new names, new forms and new procedures. All new cases are initiated in Division Two; complex cases may be transferred to Division One.

Magellan List

Cases involving allegations of serious physical or sexual abuse of children can be transferred to the Magellan List in Division One of the FCFCOA. This is a special list which operates in Melbourne and a few interstate registries. The list has dedicated registrars, child experts and judicial officers. Court staff work in collaboration with child welfare agencies. The cases in this list are fast-tracked.

Lighthouse Project and Evatt List

The FCFCOA introduced its second specialised family violence program in 2021. It comprises a special screening and triage procedure and a special Evatt List; these are referred to jointly as the Lighthouse Project. All applications filed seeking parenting orders must be triaged at the point of filing, where it is determined whether a matter needs to be referred to the Evatt List. The list entails a separate pathway with dedicated registrars, child experts and judicial officers and operates within a set time frame. It covers cases involving allegations of risks to children of family violence, parental substance abuse, parental mental illness or parental criminal behaviour. The program has been expanded to all registries and now operates in Victoria.

An important change to the FL Act introduced in September 2019 is the ban on personal cross- examination in family law cases where family violence is alleged and certain circumstances apply (see s 102NA FL Act). For example, if a final state family violence order is in place between the parties, then an unrepresented party (who is the alleged perpetrator) cannot personally cross-examine the other party (who is the alleged victim).

Cross-examination can only be done by a legal representative. The court may request assistance from Victoria Legal Aid to fund legal representation in such cases.

If a party does not have legal representation, cross- examination is not permitted or may only be permitted by the court if alternative protections are used (e.g. the cross-examination is conducted via video-link).