Family Law Injunctions

An injunction is an order made by a court that requires a person to do, or refrain from doing, a particular act. In family law, an injunction is sought in relation to a financial matter or parenting matter.

Financial matters

An injunction in a financial matter is used to prevent or restrict a party from acting to reduce assets available for division in a property settlement. It is an effective way to preserve the pool of assets and to stop one party from dealing with property unilaterally. A court will grant an injunction where there is a real risk the applicant would suffer damage if it were not granted.

The court’s powers in restraining a party from doing a particular thing are far-reaching. Examples include restraining a party from:

• dealing with real estate owned by parties to the relationship, such as by selling it or increasing the mortgage on it;
• starting high-risk activities on top of normal business;
• disposing of superannuation, shares, or investment funds;
• using or occupying the former couple’s home;
• entering the other party’s workplace;
• damaging the other party’s property.

Granting an injunction

Section 114 of the Family Law Act 1975 provides the court’s power to make injunctions. The court must be satisfied it is just and convenient to make the order. The order can be made with or without conditions.

The granting of an injunction usually requires an undertaking as to damages. The applicant undertakes to compensate the party against whom the injunction is taken if that party suffers any loss or damage as a result of it.

The criteria for the court to grant an injunction are:

1. the applicant must have a basis for the claim under the Act (eg property settlement, spousal maintenance)
2. objective evidence must be supplied to establish a risk, threat or intention to dispose of or diminish assets;
3. the injunction terms must be tailored to the circumstances and be no more restrictive than is necessary to protect the applicant.

If urgent injunctive relief is sought, and a high level of risk is evident from the applicant’s claim, the usual procedural fairness – of the injunction being served and listed for hearing at short notice – may be dispensed with and a decision made “ex parte”, meaning “in the absence of the other party.” The applicant must then serve a copy of the injunction on the other party and the court usually sets a hearing within two to three weeks.

Under section 114(6) if a party to a marriage is bankrupt, a court can grant an injunction restraining a bankruptcy trustee from distributing dividends among the bankrupt party’s creditors.

There is a further safeguard found in section 106B of the Act. It allows a court to set aside any transaction of a party, or a third party on behalf of that party, which is made or planned to be made, to defeat an existing or expected order. A common example is when a party disposes of property or an interest in a company to a family member in a bid to reduce the asset pool available for division. In those circumstances, an order can be sought to have the transaction reversed to ensure the property is considered in the property settlement.

Parenting matters

Under section 68B of the Act, the court can grant an injunction for the welfare of a child when there are proceedings about the child, including an injunction for:

• the personal protection of the child;
• the personal protection of:
  • a parent of the child;
  • a person who has a residence order or contact order in relation to the child;
  • a person who is responsible for decisions about the care, welfare and development of the child.
• restraining a person from entering or remaining in:
  • a place of residence, employment or education of the child;
  • a specified area that contains such a place;
• restraining a person from entering or remaining in:
  • a place of residence, employment or education of a parent or person listed above;
  • a specified area that contains such a place.

When determining whether it is appropriate to grant an injunction in parenting matters, the court’s paramount consideration is what is in the best interests of the child.

Enforcement

There are several ways to enforce an injunction if it is breached. Penalties for breaching an order include a bond, fine or imprisonment.

If an injunction is contravened, the person protected by the injunction can file a contravention application with the court to seek enforcement of the order.

Police can arrest a person without a warrant if they reasonably believe the person has breached an injunction by causing or threatening to cause bodily harm to a person protected by the injunction, or by harassing or molesting (pestering or annoying) that person. Police do not have the power to arrest in relation to an injunction that was issued for a reason other than personal protection.

For advice or representation in any legal matter, please contact Armstrong Legal.