TL;DR: When drafting injunctions under section 68B of the Family Law Act 1975 (Cth), the operative clause of the order must expressly state that the injunction is “for the personal protection of [full name, date of birth]” — because section 68C(2) provides that police can only arrest a respondent in breach without warrant if, and only if, the order is expressed in precisely those terms. Get the wording wrong or leave it out, and police have no power of arrest, no matter how serious the breach.
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When drafting injunctions under section 68B of the Family Law Act 1975 (Cth), there is a drafting requirement that is easy to overlook but which has significant practical consequences: the specific wording needed to enliven police powers of arrest under section 68C.
The Legislative Framework
“If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
(a) an injunction for the personal protection of the child; or
(b) an injunction for the personal protection of:
(i) a parent of the child; or
(ii) a person with whom the child is to live under a parenting order; or
(iii) a person with whom the child is to spend time under a parenting order; or
(iv) a person with whom the child is to communicate under a parenting order; or
(v) a person who has parental responsibility for the child; or
(c) an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of the child; or
(ii) a specified area that contains a place of a kind referred to in subparagraph (i); or
(d) an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of a person referred to in paragraph (b); or
(ii) a specified area that contains a place of a kind referred to in subparagraph (i).”
Section 68B(2) further provides that a court exercising jurisdiction under the Act, other than in proceedings to which subsection (1) applies, may grant an injunction in relation to a child by interlocutory order or otherwise in any case in which it appears to the court to be just or convenient to do so.
Section 68C(1) then confers on police officers the power to arrest a respondent without warrant where:
“(a) an injunction is in force under section 68B for the personal protection of a person (the protected person); and
(b) a police officer believes, on reasonable grounds, that the person (the respondent) against whom the injunction is directed has breached the injunction by:
(i) causing, or threatening to cause, bodily harm to the protected person; or
(ii) harassing, molesting or stalking that person.”
The Critical Drafting Point
Section 68C(2) is the provision that practitioners must keep front of mind. It provides:
“For the purposes of subsection (1), an injunction granted under section 68B is an injunction for the personal protection of a person if, and only if, it is expressed to be for the personal protection of the person.”
The words “if, and only if” are doing significant legislative work. This is not a directory provision. It is a strict statutory precondition to the operation of the arrest power. If the order does not contain the precise language, police have no power of arrest under section 68C, regardless of the nature or severity of the conduct restrained, and regardless of the obvious protective intent of the order.
The protected person’s full name and date of birth should also be included in the operative clause to ensure clear identification and enforceability in the field.
Practical Drafting Guidance
The operative clause should follow this structure:
“Pursuant to section 68B of the Family Law Act 1975, an injunction issues, for the personal protection of [FULL NAME, DATE OF BIRTH] and [FULL NAME, DATE OF BIRTH], restraining and injuncting the [Mother/Father] from: [operative restraints].”
The phrase “for the personal protection of [name, DOB]” must appear in the order itself — not merely in the preamble, the application, or the reasons for judgment. It must be in the operative injunction.
Common Restraints
Typical restraints sought under section 68B include:
Attending at or within a specified distance of the children’s school or place of education, and/or attempting to collect the children therefrom.
Attending at or within a specified distance of the children’s extra-curricular activities, and/or attempting to collect the children from such activities.
Attending at or within a specified distance of the other party’s residence or place of employment.
Attending at or within a specified distance of any location at which the children attend allied health or other appointments, and/or attempting to collect the children from any such appointments.
Why This Matters in Practice
Police are frequently called upon to enforce family law injunctions in circumstances where the Court is not immediately available. An arresting officer responding to a reported breach must be able to identify on the face of the order that it is expressed as being for the personal protection of a named individual. Section 68C(2) makes this a binary test: either the order is expressed in those terms, or the arrest power does not arise. There is no discretion and no scope for implication.
Where that language is absent, the officer has no authority to arrest without warrant under section 68C, and the protected party is left without the immediate enforcement mechanism that the provision is designed to provide. The protective purpose of section 68B is substantially undermined if the order cannot be enforced at the point of breach.
Solicitors should audit any existing section 68B injunctions in their files to confirm the operative clause contains this language. Where orders have been made without it, an application to vary or clarify the order to include the requisite wording should be considered, particularly in high-risk matters.
Summary
The drafting rule distilled from sections 68B and 68C(2) is simple: every section 68B injunction intended to carry police arrest powers must, on its face and in its operative clause, be expressed to be “for the personal protection of [name and date of birth].” The “if, and only if” language of section 68C(2) is unambiguous. Omitting this phrase renders the arrest power in section 68C(1) inapplicable, leaving a critical enforcement gap at precisely the moment when vulnerable parties most need the law’s protection. Given the protective purpose of these orders, this is a drafting error practitioners cannot afford to make.
If you need help with drafting a section 68B injunction, find yourself an able 68B injunction lawyer such as Katrene Halteh from Urban Family Lawyers to assist.