Sydney Office

Level 35
201 Elizabeth Street
Sydney NSW 2000

Melbourne Office

Level 4
99 William Street
Melbourne VIC 3000

Brisbane Office

Level 5
231 North Quay
Brisbane QLD 4000

Canberra Office

Level 5
1 Farrell Place
Canberra ACT 2601

Armstrong Legal Logo

Privacy Policy  |  Terms & Conditions

Copyright © 2017 Armstrong Legal. All rights reserved.

Phone 1300 168 676

Obtaining Injunctive Court Orders

In the recent Full Court of the Family Court decision of Teh & Muir [2015] FamCAFC 224, Justices Finn, Strickland and Ryan confirmed that when the Family Court is exercising its power to determine whether or not it has jurisdiction in a particular case, it can be appropriate for it to make orders which preserve the status quo prior to determining the question of jurisdiction.

The facts of the case are as follows: Ms Teh was 36 years of age and Mr Muir was 85 years of age at the time of the proceedings, and Mr Muir had a case guardian appointed on his behalf. The parties lived in the same house between January 2010 and early 2014 and signed a Financial Agreement on 19 February 2014 which stated that all assets were to be divided equally upon separation.

Mr Muir’s case was that there was no de facto relationship and that he had no capacity to enter into Financial Agreement. Ms Teh sought Orders from the Family Court enforcing the Financial Agreement. The primary judge, whilst not having an opportunity to determine the jurisdictional question, did nevertheless make a series of interim orders, including an order that released 50 percent of sale proceeds of Mr Muir’s property to him and an order that limited how Ms Teh could deal with her own finances.

Ms Teh appealed the decision, essentially on the basis that the existence of the Financial Agreement ousted the jurisdiction of the Court to make any orders which altered her and Mr Muir’s property interests. This was unsuccessful.

The key paragraph from the judgement of Justices Finn and Strickland at paragraph 29 is as follows:

It has long been recognised that while the Family Court is exercising its power (which if not expressly provided for in the Act, must necessarily be implied) to determine whether or not it has jurisdiction in a particular case, it can be appropriate for it to preserve the status quo (in this case the disputed half share of the sale proceeds) by the grant of an interlocutory injunction (see R v Ross-Jones; Ex parte Green [1984] HCA 82; (1984) 156 CLR 185 at 202, and Yunghanns & Yunghanns and Ors [1999] FamCA 64; (1999) FLC 92-836).

Similarly, Justice Ryan held that the Court had, as an aspect of its implied powers, power to preserve the subject matter of the dispute and to make ancillary orders. Her Honour also stated that the Court’s power to make this Order arises under section 34 of the Family Law Act, which states that “The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, and to issue, or direct the issue of, writs of such kinds, as the Court considers appropriate.

Armstrong Legal’s family law team invite you to contact us if you require legal advice in relation to family law de facto property matters, issues arising in relation to the operation or validity of a Financial Agreement or any other family law issue. Our approachable and experienced team look forward to meeting with you at an initial appointment at one of our offices around Australia to discuss your case.

Image Credit – Andriy Popov ©

Written by Peter Magee on June 26, 2017

Peter is a partner of Armstrong Legal and head of our Family Law Division. He has over 15 years’ experience. His past experience dealing with large cases benefits his family law clients by providing insight into complex and tactical issues. As a result, Peter can often achieve settlements outside Court that may otherwise have not been achievable. View Peter’s profile

Leave a Reply

Your email address will not be published. Required fields are marked *

Contact Armstrong Legal:
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448
Canberra: (02) 6288 1100