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Process for obtaining injunction in cases of family violence

Discuss about the Welfare Law for Child Abuse and Neglect.

The facts of the case lead us to safely determine that the violent nature of Carol’s husband was of such a degree and to such an extent that Carol was forced to make a decision to leave him. It must be mentioned here that Carol intends that her husband, who is away at the time is never able to return home. There are considerable precedents that provide us insight that it is indeed possible to get a “refrain from” or “stay away” order of protection against the husband from the court at the inception of a divorce or separation.[1]

The order that Carol wants to reinstate against her husband is a “stay away” order. This order generally means that the husband cannot return to the marital home and needs to stay away from the wife’s domain including her family and workplace. Failure to abide by these rules will attract prosecution. Carol can simply plead to a court for an injunction against her husband owing to her husband’s violent nature. Section 114 of the Family Law Act, 1975 stipulates that a court may grant an injunction against the respondent for the purpose of personal protection of the petitioner, especially when the petitioner is a victim of family violence.[2]

The process to apply for an injunction relevant to the present case is basic in nature. Injunctions can be sought by making an application for urgent or interim orders.[3] Section 114 of the Family Law Act, 1975 also provides that if a person intends to seek a permanent injunction order against their spouse they can do so by way of an application to be made for final orders. Rule 4.01 prescribes that such an injunction application must include all the particulars of such action that are relevant for the convenient disposal of the particular case.

So, it can be positively concluded that Carol can restrain her husband from returning home by way of an application for injunction as specified under Section 114 of the Family Law Act, 1975. The court shall determine whether such an order is necessary in this case and act accordingly.

The human services provide income support in relation to various circumstances including low income supplement, crisis payment, and payment for people with illness, career allowance and partner allowance (this facility is now closed to new applicants).[4] It has been clearly stated that Carol’s husband supports the family. Now that Carol has decided to leave her husband, she needs financial assistance by way of income support from the human services. However, the human services observe that Carol has a join account with her husband that he can draw from and denies her any income support. It should be mentioned here that income support is only provided to people with low or no income.

Income support and joint account considerations


On the other hand, Carol has not filed for a separation or a divorce against her husband yet. Under these circumstances, the human services are just in taking into account the joint account of Carol and her husband. The only recourse for Carol right now in this regard is to file an application for divorce or separation at a Court which will suspend the joint account from consideration and then apply for income support from the human services. If the human services still now grant her an income support, she can file an application to the court stating her grievance and the Court shall take such measures as it thinks fit to reinstate Carol to a decent lifestyle.

If Carol is interested in saving the marriage   she may refer to a family counselor for effective counseling of the issues. However, the facts of the case provide insight that Carol has no intention of cohabiting with her husband anymore. The way to achieve that is to file for a divorce or separation at the earliest. Also, given her financial dilemma, she should file for maintenance as guaranteed under section 72 of the Family Law Act, 1975.[5]

The FaCS refers to the department of family and community services that work in tandem with various agencies and families to provide a decent environment for the children to grow up in. The motto of the FaCS is to provide care to young people and children. It also provides insight that the above mentioned responsibility is a huge one and that the only way to realize it is to share it with the government, the families as well as the agencies working in the field.[6] The primary procedure that the FaCS follows is to make the young people and children the main focus of the work they undertake with the families. FaCS is not just an agency that takes into consideration the children’s needs but also help the families and cooperate with them to cater for their needs.[7] In NSW it is believed by the department that a child is at risk of significant harm when:


  • the child’s essential psychological or physical needs are not met or if they are at a significant risk of not being met,
  • the child’s well-being, welfare or safety is at risk,
  • when the child does not get the medical case that is necessary
  • when the child does not receive the education that they should, as specified under the Education Act 1990,
  • when the child experiences ill-treatment, sexual abuse or physical abuse and
  • when the child experiences serious psychological or physical harm as a direct result of staying with a family that has history of domestic violence.[8]

The FaCS takes into account the above mentioned criterions while examining each report. Hence, Rosy must be ready to answer each of their question keeping these in mind. If Rosy can convince them that the kids are not at risk and that she needs help in taking care of herself as a result of her disability, the FaCS shall find a suitable channel to provide assistance to Rosy. Such assistance may well be financial or in any other form that they deem to be necessary in this particular case.[9]

Child welfare services and criteria for significant harm

Rosy may well request the children’s father to provide for a maid for the well being of the family. She may also ask him to come and stay with them if such a scenario is possible. This will allow him to bond with his children while taking care of his family.

On the other hand, if Rosy does not want to involve the children’s father any more than he already is, she may file an application to the court for the sole custody of her children with visitation rights for the father. If the court determines that the grounds are just and in good conscience the court may grant Rosy the sole custody of her children which will make the current informal arrangement with the children’s father a formal one.

This will take away the chances of the children’s father to apply for a “live with” order for the children. It will also take away Rosy’s fear of losing her children and make her feel more secure.

Rosy may well take the assistance of the FaCS and the DoCS or any other community service or child service department of the government for the same.[10] She may also consult with the numerous non-governmental agencies that are working for the welfare of the children in Australia. In addition to this, she may take the advice of a family or children counselor in order to get a proper grasp of the mechanism by which she can get the assistance of the various governmental services that are set up for the exact purpose she needs them for.


She can always search the web and locate the official portal of the FaCS for more information on the mechanism by which they provide a helping hand to the families that are at a dire need of such help. She can also look up other private agencies that work with the FaCS in the overall process to gain a proper insight into the functioning of the relevant agencies.

Section 46 of the Residential Tenancies Act, 1987 provides insight into the rights of the lessor to enter the leased premises for inspection. The specified statute makes it clear that in case the lessor enters the premises for routine inspection he must do so on a reasonable time and day mentioned in a written notice to the tenant. The statute also provides that the lessor must give such notice at least 7 days prior to the planned entry and within 14days prior to the entry that is being proposed in the notice.[11]

Obtaining sole custody of children

So, it is the right of Megan and Amy to get a prior notice of visitation by the lessor for inspection. On the other hand, Gerry has no right to drop in unannounced for the purpose of inspection of the leased property. Hence, it then follows that Gerry has no right to present a variation of lease agreement that affects the same. The facts of the case make it clear that Amy and Megan has no intention of signing the varied lease agreement. However, Gerry has threatened to terminate the lease agreement if do not sign off on the varied lease agreement.

Section 71 and 72 of the Residential Tenancies Act, 1987 lays down the grounds and mechanism by which a tenancy agreement can be terminated by the lessor.[12] It clearly states that the lessor can only terminate a tenancy before its term is over by giving a 30-day notice to the tenant for vacation of premises when the tenant breaches any term of the lease agreement.[13]

Hence, it can be safely ascertained that as Amy and Megan has not breached any term of the original lease agreement, Gerry has no ground to terminate the agreement. Amy and Megan may approach a Court with their grievance in relation to the varied lease agreement. They can also file for an injunction against the lessor to prevent him from dropping in on the leased premises unannounced.

Section 43 of the Residential Tenancy Act, 1957 clearly mentions that in case urgent repairs are required the tenant must intimate the lessor of such repairs and on receiving such knowledge, the lessor must act on it within 48 hours.[14] It is also mentioned that such repairs must be carried out by a suitable repairer. Urgent repairs have been defined under Section 43 of the Residential Tenancy Act, 1957 as any repairs that relates to:

  • The restoration or supply of services that are mentioned in the relevant regulations as services that is essential.
  • The prevention of exposing an individual to the possibility of injury or risking property damage or resulting in undue inconvenience or hardship to the tenant.

It has also been provided in the statute that in case the lessor does not carry out the urgent repairs after being notified by the tenant, the tenant may take such repair upon himself. The tenant may carry out the minimum repairs necessary through a suitable repairer. The lessor must reimburse the respective tenant for the repairs that were affected by him as well as pay for any remaining repairs that are to me made.

So, Amy and Megan can carry out the repairs required in respect of the smell emanating from the stove and the back step as soon as possible by hiring a suitable repairman and Gerry will have no choice but to reimburse them for the costs incurred by them in the process.[15]

Any and Megan may approach the legal aid services for information as to the mechanism to deal with their current situation with Gerry. They can also approach the court for assistance in settling the dispute between them and the lessor. These institutions shall provide Amy and Megan the information as well as the mechanism by which they can get the dispute properly redressed.

When can a court grant an injunction in a family law matter? | Family Law Network Australia. (2017). Familylawmattersaustralia.com.au. Retrieved 25 August 2017, from https://www.familylawmattersaustralia.com.au/when-can-court-grant-injunction-family-law-matter

Injunctions under the Family Law Act (Cth) - The Law Handbook. (2017). The Law Handbook. Retrieved 25 August 2017, from https://www.lawhandbook.org.au/2016_04_04_07_injunctions_under_the_family_law_act_federal_law/

Australian Government Department of Human Services. (2017). Humanservices.gov.au. Retrieved 22 August 2017, from https://www.humanservices.gov.au/

Mandatory reporting of child abuse and neglect. (2017). Child Family Community Australia. Retrieved 24 August 2017, from https://aifs.gov.au/cfca/publications/mandatory-reporting-child-abuse-and-neglect

Drury-Hudson, J. (1999). Decision making in child protection: The use of theoretical, empirical and procedural knowledge by novices and experts and implications for fieldwork placement. The British Journal of Social Work, 29(1), 147-169.

Bromfield, L., & Higgins, D. (2005). National comparison of child protection systems. ISSUES, (22), 2.

Farrell, A. (2004). Child protection policy perspectives and reform of Australian legislation. Child Abuse Review, 13(4), 234-245.

Community Services - Child protection services. (2017). Community.nsw.gov.au. Retrieved 27 August 2017, from https://www.community.nsw.gov.au/for-agencies-that-work-with-us/child-protection-services

Austlii (2017). Retrieved 23 August 2017, from https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fla1975114/s114.html

Austlii (2017). Retrieved 23 August 2017, from https://www.austlii.edu.au/cgi-bin/viewdb/au/legis/wa/consol_act/rta1987207/

Austlii (2017). Retrieved 24 August 2017, from https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/wa/consol_act/rta1987207/s46.html

Austlii (2017). Retrieved 25 August 2017, from https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/wa/consol_act/rta1987207/s43.html

Austlii (2017). Retrieved 25 August 2017, from https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/wa/consol_act/rta1987207/s72.html

Austlii (2017). Retrieved 27 August 2017, from https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fla1975114/s72.html

Austlii (2017). Retrieved 27 August 2017, from https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/wa/consol_act/rta1987207/s71.html

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