Beware of section 114AB of the Family Law Act

By Christopher Ragozzino, Senior Associate

Section 114AB of the Family Law Act 1975 (Cth) (“the Act”) governs the interaction between injunctions made under the Act and state or territory laws, including family violence intervention orders (“FVIOs”).  This interplay is particularly relevant when a party seeks an injunction under section 114 of the Act to occupy the family home, after an FVIO has been made.

When can you apply for an injunction?

Section 114 of the Act sets out the various injunctions the Court, being the Federal Circuit and Family Court of Australia (“the Court”), can make in both matrimonial and de facto financial clauses.  Relevantly for this article, the Court may grant an injunction to a party as it considers proper:

1. Relating to the use or occupancy of the matrimonial home: section 114(1)(f); or
2. With respect to the use or occupancy of a specified residence of the parties to the de facto relationship or either of them: section 114(2A)(a).

An injunction is a powerful tool that should not be overlooked.  The Full Court of the Family Court of Australia (as it then was) in the matter of In the Marriage of Davis [1976] FamCA 38, helpfully set out the criteria as follows (emphasis added):

The criteria for the exercise of the power under sec. 114(1) are simply that the court may make such order as it thinks proper. The matters which should be considered include the means and needs of the parties, the needs of the children, hardship to either party or to the children and, where relevant, conduct of one party which may justify the other party in leaving the home or in asking for the expulsion from the home of the first party.

A sole use and occupation injunction is generally employed when one party seeks to have exclusive occupation of the family home.  If granted, the injunction prevents the other party from occupying the home and provides the party who remains in occupation with a level of peace and comfort while the extant property matters are finalised.  For the party that is unable to occupy the family home, this can be a time of significant upheaval, requiring them to obtain alternate accommodation, either with family or friends or securing their own accommodation.

How section 114AB comes in

Section 114AB provides that if a person has instituted proceedings or taken action under a prescribed state or territory law in respect of a matter for which they could seek an injunction under section 68B or section 114 of the Act, they cannot institute proceedings under those sections unless:

1. Where the person instituted the proceeding:
2. The state proceedings have lapsed, been discontinued, or dismissed; or
3. The orders made under the state law have been set aside or are no longer in force; and
4. Where the person took other action – neither that person nor any other person is required, at the time that the person institutes a proceeding under section 68B or 114, to do an act, or to refrain from doing an act.

For present purposes, the Family Violence Protection Act 2008 (VIC), which is the law in Victoria that applies to the application of FVIOs, is a state law that section 114AB applies to.

If an FVIO excludes a person from the family home, they cannot then seek an occupation order under section 114 of the Act in the Court while that FVIO remains in force.  This is so even if they consented to the FVIO on a without admissions basis.  This restriction applies equally to the protected person and the excluded person.

The key case of Spears v Caro [2020] FamCA 985 demonstrates the power of section 114AB and why caution should be taken when consenting to an FVIO on a without admissions basis.

In summary, the husband sought an injunction under section 114 of the Act for sole occupation of one of two properties of the parties, with the wife occupying the other.  The wife raised section 114AB as a bar to the application because an FVIO was already in place.  The FVIO was applied for by the wife and consented to by the husband on a without admissions basis.  A condition of the FVIO meant that the husband was prevented from attending either property.

Justice Gill found that the husband’s consent to the FVIO constituted “taking action” under the family violence legislation.  As a result, the husband was not entitled to institute proceedings for sole occupation under the Act while the FVIO remained in force and, in consequence, the  husband’s application was struck out and dismissed.

Accordingly, where the injunctive relief available under section 68B or section 114 coincides with relief available under state legislation, section 114AB controls the interaction.

Just as the respondent to an FVIO is impacted, the applicant, or a protected person, is still caught up in the mischief of section 114AB.  There is competing debate in the Court as to the issue that even if the Police apply for an FVIO on behalf of a party, the fact that the protected person engaged with Police can be deemed as taking other action, meaning they are also prevented from seeking exclusive occupation orders.  In these circumstances, the FVIO can already deal with who has sole use and occupation of the family home, however if the FVIO expires or is discontinued, consideration needs to be given to making an urgent section 114 application.

Why this matters?

For respondents, consenting to an FVIO that excludes you from the home may permanently affect your ability to return, even through family law proceedings.  Even though being excluded from the home does not affect your other rights pursuant to section 79 or 90SM of the Act, being unable to return home can cause further anguish, especially if the separation was recent and acrimonious.

For protected persons, similarly, if you agree to conditions that restrict your own access to the home, or obtain that in an FVIO, you cannot later seek an occupation order under section 114 while the FVIO is in force.

It is important to consider the long-term implications before consenting to FVIO conditions.  This little know but impactful section of the Act has implications that can change the landscape of your post-separation life.

Kennedy Partners regularly advises clients on complex intersections between family law and family violence legislation.  For guidance on managing FVIOs and occupation rights, contact us on 03 9618 7300.