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TOPIC 10:

TOPIC 10:. INJUNCTIONS AND FAMILY VIOLENCE ORDERS. PRELIMINARY MATTERS. (a) What is an injunction? Injunction can serve one of either two functions form of relief in own right (eg permanent) secondary form of relief (eg interlocutory). PRELIMINARY MATTERS.

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TOPIC 10:

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  1. TOPIC 10: INJUNCTIONS AND FAMILY VIOLENCE ORDERS Family Law Topic 10

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

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

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

  5. (1) Independent Injunctions Under FLA (a) Scope of s 114(1) • discretionary • as it thinks proper • 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 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)? 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: • make an order restraining a person from repossessing property of a party to a marriage; or • grant an injunction restraining a person from commencing legal proceedings against a party to a marriage. 90AF(2) - in proceedings under s 114, court may make any other order, or grant any other injunction that: • directs a third party to do a thing in relation to the property of a party to the marriage; or • alters the rights, liabilities or propertyinterests of a third party in relation to the marriage. 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 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 • 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 • third party has been accorded procedural fairness in relation to the making of the order or injunction 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 under s 114(3) - court is satisfied that, in all the circumstances, it is just or convenient to grant injunction • court is satisfied that order or injunction takes into account the matters mentioned in subsection (4). 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 • the taxation effect (if any) on the third party • social security effect (if any) on the parties • third party's administrative costs in relation to the order/injunction • if concerns a debt of a party - the capacity of a party to repay the debt after the order is made • economic, legal or other capacity of third party to comply with the order/injunction • 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 Family Law Topic 10

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

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

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

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

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

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

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

  18. (1) Apprehended Domestic Violence Laws • Introduction • Meaning of ‘domestic relationship’ s 5 • Meaning of ‘relative’ s 6 • 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(3) – Parliament recognises: domestic violence is unacceptable … Family Law Topic 10

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

  20. (1) Apprehended Domestic Violence Laws (b) Complaint procedure – Pt 4 + 10 (ADVO) • 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” • Circumstances in which police must make application for order: s 49 • Open court: s 58 Family Law Topic 10

  21. (1) Apprehended Domestic Violence Laws (b) Complaint procedure – Pt 4 + 10 (ADVO) • 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 …” Family Law Topic 10

  22. (1) Apprehended Domestic Violence Laws (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: (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) Family Law Topic 10

  23. (1) Apprehended Domestic Violence Laws (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 • 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) Family Law Topic 10

  24. (1) Apprehended Domestic Violence Laws (d) Criminal Offences • contravention of ADVO/APVO (s 14) • stalking, intimidation (s 13) • appeals to District Court Family Law Topic 10

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