Question
of the week Question of the week

Curious. Interesting. Informative.

09 September 2016

Which court for orders?

Family Law
Federal

Asked

In a matter in the Federal Circuit Court, the client is concurrently pursuing an Intervention Order in the Magistrates Court. The police are making the application.

The client is seeking a condition on the order that her husband be prevented from coming to her house. The prosecutor has told her that, if she doesn't get an order from the Magistrates Court, she can get one from the Family Court.

Is such an order only enforceable through Family Court contravention proceedings? My concern is that the order will not be enforced by the police in the same way as an Intervention Order and therefore criminal penalties will not apply if he breaches it.

Thank you.

Answered

Thank you for the question.

An injunction for sole use and occupation can be sought under s 114 of the Family Law Act 1975, but it is not an easy task. Practically speaking the Intervention Order is much easier, especially if the matter is serious enough for the police to be pursuing the Intervention Order. The s 114 order is not only enforceable through contravention proceedings. Section 114AA provides powers of arrest:

114AA  Powers of arrest

(1) Where:

(a) an injunction is in force under section 114 for the personal protection of a person; and

(b) a police officer believes, on reasonable grounds, that the person against whom the injunction is directed (in this section called the respondent) has, since the injunction was granted, breached the injunction by:

(i) causing, or threatening to cause, bodily harm to the person referred to in paragraph (a); or

(ii) harassing, molesting or stalking that person;

the police officer may arrest the respondent without warrant.

But the reality is the order for sole use and occupation is still difficult to achieve and there are many factors the court needs to consider. Some relevant cases which deal with these issues:

Davis and Davis (1976) FLC ¶90-062

O'Dea and O'Dea (1980) FLC ¶90-896

Dean and Dean (1977) FLC ¶90-213

Jolly and Jolly (1978) FLC ¶90-458

Plowman v Plowman (1970) 16 FLR 447

The age of the cases shows that it’s not a common application now – the Intervention Order is much more common.

Regards

Mentor