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

2. Family Law Topic 10 2 PRELIMINARY MATTERS (a) What is an injunction? Injunction can serve one of either two functions Injunction can serve one of either two functions  form of relief in own right (eg permanent)  secondary form of relief (eg interlocutory)

3. Family Law Topic 10 3 PRELIMINARY MATTERS (b) When should a court grant (interlocutory) injunctions? general principles general principles  applicant has an arguable case  convenience/justice  damages adequate?

4. Family Law Topic 10 4 PRELIMINARY MATTERS (c) What type of injunctions can be granted? Independent, permanent and perpetual Independent, permanent and perpetual Ancillary, interim and interlocutory Ancillary, interim and interlocutory (i) ‘Mareva’ injunction (ii) ‘Anton Piller’ order - extremely strong case - damage very serious - clear possession evidence - real possibility of destruction

5. Family Law Topic 10 5 (1) Independent Injunctions Under FLA (a)Scope of s 114(1) discretionary discretionary as it thinks proper as it thinks proper paragraphs (a) - (f) paragraphs (a) - (f) (a)personal protection order (home) (b)restraining order (home) (c)restraining order (work) (d)marital relationship (e)property injunction (f)exclusive occupation order

6. Family Law Topic 10 6 (1) Independent Injunctions Under FLA (a)Scope of s 114(1) (i) personal protection and restraining orders: s 114(1)(a)-(c) (ii) protection of marital relationship: s 114(1)(d) (iii) property injunctions: s 114(1)(e) (iv) exclusive occupation order: s 114(1)(f) (v) third parties and s 114(1)? - sham or puppet? (but now note effect of Pt VIIIAA) (vi) effect of s 114(2)?

7. Family Law Topic 10 7 (1) Independent Injunctions Under FLA (a)Scope of s 114(1) Impact of Pt VIIIAA? 90AF(1) - in proceedings under s 114 court may: proceedingscourtproceedingscourt make an order restraining a person from repossessing property of a party to a marriage; or make an order restraining a person from repossessing property of a party to a marriage; or propertymarriage propertymarriage grant an injunction restraining a person from commencing legal proceedings against a party to a marriage. grant an injunction restraining a person from commencing legal proceedings against a party to a marriage.proceedings marriageproceedings marriage 90AF(2) - in proceedings under s 114, court may make any other order, or grant any other injunction that: proceedingscourtproceedingscourt directs a third party to do a thing in relation to the property of a party to the marriage; or directs a third party to do a thing in relation to the property of a party to the marriage; orthird party propertymarriagethird party propertymarriage alters the rights, liabilities or property interests of a third party in relation to the marriage. alters the rights, liabilities or property interests of a third party in relation to the marriage.propertyintereststhird partymarriagepropertyintereststhird partymarriage

8. Family Law Topic 10 8 (1) Independent Injunctions Under FLA (a)Scope of s 114(1) 90AF(3) - court may only make an order or grant an court injunction under 90AE(1)/(2) if: injunction under 90AE(1)/(2) if: making of order, or granting of injunction, is reasonably necessary etc to effect a division of property between the parties to the marriage making of order, or granting of injunction, is reasonably necessary etc to effect a division of property between the parties to the marriagepropertymarriagepropertymarriage if order or injunction concerns a debt of a party to the marriage - it is not foreseeable at time order made, or the injunction granted, that to make the order/grant the injunction would result in the debt not being paid in full if order or injunction concerns a debt of a party to the marriage - it is not foreseeable at time order made, or the injunction granted, that to make the order/grant the injunction would result in the debt not being paid in full marriagemade marriagemade third party has been accorded procedural fairness in relation to the making of the order or injunction third party has been accorded procedural fairness in relation to the making of the order or injunction third party third party

9. Family Law Topic 10 9 (1) Independent Injunctions Under FLA (a)Scope of s 114(1) 90AF(3) for an injunction/order under s 114(1) - court is satisfied that, in all the circumstances, it is proper to make the order/grant injunction for an injunction/order under s 114(1) - court is satisfied that, in all the circumstances, it is proper to make the order/grant injunctioncourt for an injunction under s 114(3) - court is satisfied that, in all the circumstances, it is just or convenient to grant injunction for an injunction under s 114(3) - court is satisfied that, in all the circumstances, it is just or convenient to grant injunctioncourt court is satisfied that order or injunction takes into account the matters mentioned in subsection (4). court is satisfied that order or injunction takes into account the matters mentioned in subsection (4). court

10. Family Law Topic 10 10 (1) Independent Injunctions Under FLA (a)Scope of s 114(1) 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 party the taxation effect (if any) on the third partythird partythird party social security effect (if any) on the parties social security effect (if any) on the parties third party's administrative costs in relation to the order/injunction third party's administrative costs in relation to the order/injunction third party third party if concerns a debt of a party - the capacity of a party to repay the debt after the order is made if concerns a debt of a party - the capacity of a party to repay the debt after the order is mademade economic, legal or other capacity of third party to comply with the order/injunction economic, legal or other capacity of third party to comply with the order/injunctionthird partythird party if, as a result of the third party being accorded procedural fairness in relation to the making of the order, the third party raises any other matters - those matters if, as a result of the third party being accorded procedural fairness in relation to the making of the order, the third party raises any other matters - those mattersthird partythird partythird partythird party

11. Family Law Topic 10 11 (1) Independent Injunctions Under FLA (b)Scope of s 68B(1) Part VII - children Part VII - children discretionary discretionary as it considers proper for the welfare of the child as it considers proper for the welfare of the child paragraphs (a) - (d) paragraphs (a) - (d) (a)personal protection (child) (b)personal protection (carer) (c)restraining order (child) (d)restraining order (carer)

12. Family Law Topic 10 12 (a)Scope of s 114(3) discretionary discretionary interlocutory or otherwise interlocutory or otherwise just and convenient just and convenient unconditionally or on terms unconditionally or on terms Effect re third parties? Effect re third parties?  Ascot Investments (1981)  BUT now: Pt VIIIAA (2) Ancillary Injunctions Under the FLA

13. Family Law Topic 10 13 (b)Scope of s 68B(2) discretionary discretionary in relation to a child in relation to a child interlocutory or otherwise interlocutory or otherwise just and convenient just and convenient unconditionally or on terms: s68B(3) unconditionally or on terms: s68B(3) (2) Ancillary Injunctions Under the FLA

14. Family Law Topic 10 14 (a)Property Injunctions: s 38(1)(h) (i)protection of property or resources; or (ii)to aid enforcement note: Part III ‘hurdles’ note: Part III ‘hurdles’ (b) Other Part III Injunctions: s 38(1)(k) any other injunction any other injunction necessary to do justice necessary to do justice (3) Injunctions Under the PRA

15. Family Law Topic 10 15 (c)Personal Protection: s 53 four categories: (a)personal protection (b)restraining order (residence) (c)restraining order (work) (d)exclusive occupation order (3) Injunctions Under the PRA

16. Family Law Topic 10 16 (a)Introduction New Act: Crimes (Domestic and Personal Violence) Act 2007 (10.03.08) New Act: Crimes (Domestic and Personal Violence) Act 2007 (10.03.08) (formerly Part 15A Crimes Act 1900) (formerly Part 15A Crimes Act 1900) note (since 2000) distinguish between ADVO and an APVO note (since 2000) distinguish between ADVO and an APVO “reasonable grounds to fear” is the key “reasonable grounds to fear” is the key they are not criminal proceedings unless there is a breach of order (or stalking etc) they are not criminal proceedings unless there is a breach of order (or stalking etc) (1) Apprehended Domestic Violence Laws

17. Family Law Topic 10 17 (a)Introduction www.lawlink.nsw.gov.au/lc.nsf/pages/avo_index www.lawlink.nsw.gov.au/lc.nsf/pages/avo_index www.lawlink.nsw.gov.au/lc.nsf/pages/avo_index http://www.lawlink.nsw.gov.au/lawlink/vaw/dvguidelines.nsf/pages/whatis http://www.lawlink.nsw.gov.au/lawlink/vaw/dvguidelines.nsf/pages/whatis http://www.lawlink.nsw.gov.au/lawlink/vaw/dvguidelines.nsf/pages/whatis Domestic Violence Advocacy Service: 1800 810 784 Domestic Violence Advocacy Service: 1800 810 784 DoCS Domestic Violence Line: 1800 656 463 DoCS Domestic Violence Line: 1800 656 463 Victims Support line: 1800 633 063 Victims Support line: 1800 633 063 (1) Apprehended Domestic Violence Laws

18. Family Law Topic 10 18 (a) Introduction Meaning of ‘domestic relationship’ s 5 Meaning of ‘domestic relationship’ s 5 Meaning of ‘relative’ s 6 Meaning of ‘relative’ s 6 s 9(1) – Objects: ensure safety/protection, reduce/prevent violence, consistent with international obligations (DEVAW and UNCROC) s 9(1) – Objects: ensure safety/protection, reduce/prevent violence, consistent with international obligations (DEVAW and UNCROC) s 9(2) - Aims achieved by: court orders, access to justice s 9(2) - Aims achieved by: court orders, access to justice s 9(3) – Parliament recognises: domestic violence is unacceptable … s 9(3) – Parliament recognises: domestic violence is unacceptable … (1) Apprehended Domestic Violence Laws

19. Family Law Topic 10 19 (a) Introduction Offences: s 13 stalking (5 years/50pu) Offences: s 13 stalking (5 years/50pu) “stalks or intimidates … with the intention” Offences: s 14 contravening AVO (2 years/50pu) Offences: s 14 contravening AVO (2 years/50pu) “knowingly contravenes a prohibition or restriction specified …” (1) Apprehended Domestic Violence Laws

20. Family Law Topic 10 20 (b) Complaint procedure – Pt 4 + 10 (ADVO) Application: s 15 (+ ss 47-87) Application: s 15 (+ ss 47-87) Applicant: s 15 ‘domestic relationship’ requirement ; s 48(2) application by ‘(a) a person for whose protection the order would be made, or (b) a police officer” Applicant: s 15 ‘domestic relationship’ requirement ; s 48(2) application by ‘(a) a person for whose protection the order would be made, or (b) a police officer” Circumstances in which police must make application for order: s 49 Circumstances in which police must make application for order: s 49 Open court: s 58 Open court: s 58 (1) Apprehended Domestic Violence Laws

21. Family Law Topic 10 21 (b) Complaint procedure – Pt 4 + 10 (ADVO) Orders by consent: s 78 Orders by consent: s 78 Court may make ADVO: s 16(1) “if it is satisfied on the balance of probabilities … reasonable grounds to fear and in fact fears …” Court may make ADVO: s 16(1) “if it is satisfied on the balance of probabilities … reasonable grounds to fear and in fact fears …” (1) Apprehended Domestic Violence Laws

22. Family Law Topic 10 22 (b) Complaint procedure – Pt 4 + 10 (ADVO) Matters to be considered by court: s 17(1) “safety and protection of the protected person”; s 17(2) plus: Matters to be considered by court: s 17(1) “safety and protection of the protected person”; s 17(2) plus: (a) effects of restricting access to def’s premises (b) any ‘hardship’ (focus on protected person) (c) accommodation needs of all relevant parties (again there is a focus on protected person) (1) Apprehended Domestic Violence Laws

23. Family Law Topic 10 23 (c)Terms of an order Duration: s 79 “(1) for such period as is specified … by the court” (2) “as long as necessary” (3) if not specified - 12 months Duration: s 79 “(1) for such period as is specified … by the court” (2) “as long as necessary” (3) if not specified - 12 months Content and effect of AVOs: Pt 8 Content and effect of AVOs: Pt 8 prohibitions and restrictions: s 35 (approaches, restricting access, restricting possession of firearms, restricting/interfering with property, restricting specified behaviour) (1) Apprehended Domestic Violence Laws

24. Family Law Topic 10 24 (d) 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 Court appeals to District Court (1) Apprehended Domestic Violence Laws

25. Family Law Topic 10 25

26. Family Law Topic 10 26

27. Family Law Topic 10 27