If you need protection for your safety, you may have considered applying for a family violence order in your local state or territory. A family violence order (FVO) is made under state or Territory law. In the Australian Capital Territory, an FVO is granted under the Family Violence Act 2016 being ACT legislation. For more information about an FVO, you may wish to review some of our previous blogs, including this one.
Pending final determination of the family violence proceedings, an interim FVO may be granted for your immediate protection.
Unless there are exceptional circumstances, an FVO can be granted for a period of 2 years. Prior to its expiry, you can apply to the Court seeking to extend the order.
What you may not know is that you can also seek protection under the Family Law Act 1975 (Cth), in the form of an injunction pursuant to section 68B: see here. The Court can grant a section 68B injunction for the protection of a child, or for the protection of someone who is connected to the child (including a person with whom the child lives, spends time with or communicates with the child).
An injunction can restrain a person from entering or remaining in a place where the child or protected person may be, such as their home, their place of employment or a school or day-care facility.
An injunction may be granted unconditionally or on terms and conditions deemed appropriate by the Court.
The Court can also grant an injunction under section 114 of the Act. Under this section, the Court may grant an injunction for the personal protection of a party to a marriage or de facto relationship. Section 114 injunctions are broader and can also be directed to the protection of property or to the use or occupancy of a property.
It is generally a lengthier process to obtain injunctive orders, an injunction can be granted for a lengthier period (meaning you are not required to apply to extend the protective order).
Importantly, if you have a FVO in place for your protection (or for the protection of your child), the Federal Circuit and Family Court of Australia may not have the power to make an injunction where the terms of the FVO conflict or overlap with the proposed injunction. This is because an injunction is not intended to ‘exclude or limit’ the operation of State or Territory laws which may be operating.
Where the Court does make an injunction where an FVO is in place, this may be an appellable legal error (which means that your former partner may appeal the orders made, leading to costly and ongoing litigation).
You may be able to apply for an injunction where the FVO has expired, or where family violence proceedings have been discontinued or dismissed. However, it is prudent to seek advice about the appropriateness of applying for a FVO or an injunction in the Federal Circuit and Family Court of Australia. Contact Robinson + McGuinness today to arrange an appointment by email at info@rmfamilylaw.com.au or 02 6225 7040 or get started now online with one of our experienced family lawyers.
For family violence support and assistance, contact 1800 RESPECT via the National Helpline on 1800 737 732.