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Injunctions in Australian Family Law are court orders that either restrain a person from doing something. During family law disputes, they are used to protect the safety, rights, and interests of individuals, children, and property. Injunctions can address issues such as personal protection, property preservation, or compliance with court orders, and they are designed to maintain stability and prevent harm while legal matters are resolved.
Important Points To Note About Injunctions:
Applications for injunctions must be supported by relevant, admissible, and compelling evidence of facts (e.g., words or conduct) demonstrating the alleged risk.
The applicant must show a prima facie case for substantive relief.
The court weighs the hardship or inconvenience to both parties (not only the applicant).
The injunction should impose the least restriction necessary to protect the applicant’s claim. They should not be used to punish the other party or any other nefarious ulterior motives.
The applicant must demonstrate preserving the status quo is necessary to prevent their claim from being frustrated.
Injunctions are discretionary remedies, and courts will not grant them lightly.
The applicant must prove with evidence the injunction is proper, just and convenient, or necessary to achieve justice; reasonably necessary to protect their claim; and that the balance of convenience favours it.
A judge may require an applicant to give an undertaking to compensate the respondent and any affected third parties for losses if the injunction is later found unjustified or their substantive claim fails.
The court may make a costs order against a party seeking injunction if the party’s application to seek injunctive relief fails (because of insufficient evidence, poor drafting, and lack of substance in the claim).
Under the Family Law Act 1975 (Cth), the Federal Circuit and Family Court of Australia can
order various types of injunctions, some of which are briefly explained below.
Injunctions for the Personal Protection of a Child (Section 68B)
Section 68B empowers the court to issue injunctions to protect the welfare of a child in family law proceedings. The court can make orders or grant injunctions it considers appropriate, including personal protection injunctions for the child, ensuring their safety from harm. It can also issue personal protection injunctions for individuals connected to the child, such as a parent, a person the child lives with under a parenting order, a person the child spends time or communicates with under a parenting order or a person with parental responsibility for the child. The court can restrain a person from entering or remaining in the child’s place of residence, employment, or education, or a specified area containing such places. It can also restrain a person from entering or remaining in the residence, workplace, or educational institution of individuals connected to the child.
The court can grant interlocutory injunctions (temporary orders) in any case where it is just or convenient to do so. Injunctions under this section can be granted unconditionally or with specific terms and conditions as the court deems appropriate.
In essence, Section 68B focuses on safeguarding the best interests and welfare of the child by providing protective measures and restraining harmful behaviours.
Injunctions in Relation to Property or Spouses (Section 114)
Section 114 grants the court broad powers to issue injunctions in family law matters. It allows the court to make orders or grant injunctions it considers appropriate, including personal protection injunctions for a party to the marriage (e.g., restraining violence or harassment). It can also restrain a party from entering or remaining in the matrimonial home, the other party’s residence, or a specified area, or from entering the other party’s workplace.
The court can issue injunctions to protect the marital relationship (e.g., preventing interference), relating to property (e.g., preventing disposal of assets), or regarding the use or occupancy of the matrimonial home.
For de facto relationships, the court can issue similar injunctions regarding the use of a shared residence, restraining a party from entering it, or dealing with property. Sections 90SB and 90SK apply, requiring the de facto relationship to meet specific duration and geographical criteria.
The court can also grant interlocutory injunctions (temporary orders) in any case where it is just or convenient, including to enforce a decree or protect property in bankruptcy or insolvency situations.
However, Section 114AB ensures that certain parts of the Family Law Act, like those dealing with injunctions and child protection, don’t override similar laws in State or Territory systems. If someone has already taken action or started a case under a State or Territory law about a specific issue, they generally cannot also start a case under the Family Law Act for the same issue. However, this rule doesn’t apply if the State/Territory case has already ended, been dismissed, or if any orders from that case are no longer in effect. This provision helps prevent double handling of cases and clarifies when someone can use the Family Law Act after dealing with State or Territory laws.
General Powers of Courts to Issue Injunctions (Section 90SS)
Section 90SS grants the court broad powers to issue injunctions in the context of de facto financial matters under family law. This provision allows the court to issue injunctions in de facto financial disputes, similar to those available under Section 114 for married couples.
It includes restraining a party from disposing of property or taking actions that could harm the other party’s financial interests. The focus is on maintaining the status quo and ensuring fairness in property and financial matters between de facto partners. The court can grant any injunction it considers necessary to achieve justice, even if the injunction is not explicitly listed in the section. This includes injunctions related to property, financial matters, or other issues arising in de facto relationship disputes.
The court can also grant interlocutory injunctions (temporary orders) to maintain the status quo while proceedings are ongoing or to enforce a decree (e.g., ensuring compliance with a court order).
Injunctions can be granted unconditionally or with specific terms and conditions as the court deems appropriate. If a party to a de facto relationship is bankrupt, the court can issue an interlocutory injunction to restrain the bankruptcy trustee from distributing dividends to creditors.
If a party is subject to a personal insolvency agreement, the court can issue an interlocutory injunction to restrain the trustee from disposing of property (e.g., selling or gifting assets). Injunctions under this section are designed to protect property and financial interests during disputes, ensure compliance with court orders, prevent actions that could undermine the other party’s rights (e.g., disposing of assets), and maintain stability and fairness in de facto financial matters.
Injunctions Binding Third Parties (Section 90AF)
Section 90AF allows the court to make orders or grant injunctions under Section 114 that bind third parties (e.g., creditors, trustees, or other entities) in family law proceedings. This provision ensures that third parties can be included in orders or injunctions when necessary to achieve a fair division of property between spouses.
The court can restrain a third party from repossessing the property of a party to the marriage or from commencing legal proceedings against a party to the marriage. It can also issue any other order or injunction that directs a third party to act in relation to marital property or alters their rights, liabilities, or property interests. The court can only make such orders or injunctions if it is reasonably necessary or appropriate to effect a property division between the spouses. If the order concerns a debt, it must not foreseeably result in the debt not being paid in full.
The third party must be accorded procedural fairness (e.g., given notice and an opportunity to be heard), and the court must be satisfied it is proper, just, or convenient to make the order or grant the injunction. The order or injunction must also take into account specific matters, such as tax and social security impacts on the parties and the third party, the third party’s administrative costs and capacity to comply, the parties’ ability to repay debts, and any other relevant matters raised by the third party.
This provision ensures that third parties can be bound by orders or injunctions when necessary to achieve a fair and practical resolution of property disputes in family law, while also safeguarding the rights and interests of those third parties.
Prohibiting a Person from Instituting Any Proceedings (Section 102QB)
Section 102QB allows a court to make vexatious proceedings orders to prevent individuals from abusing the legal system by repeatedly initiating or conducting vexatious proceedings (frivolous, harassing, or meritless cases).
The court can make such orders if it is satisfied that a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals or has acted in concert with someone else who is already subject to a vexatious proceedings order or who has a history of vexatious litigation. The court may stay or dismiss proceedings already initiated by the person, prohibit the person from starting new proceedings (or specific types of proceedings) under the Family Law Act, or make any other appropriate order such as requiring the person to file documents by mail, provide security for costs, or pay costs.
The court can make a vexatious proceedings order on its own initiative or on the application of the Attorney-General (Commonwealth, State, or Territory), a court official, a person targeted by the vexatious proceedings, or any other person with a sufficient interest in the matter. However, the court must give the person an opportunity to be heard before making such an order.
This provision aims to protect the integrity of the legal system and prevent abuse by individuals who repeatedly initiate or conduct vexatious proceedings, ensuring that courts can focus on legitimate cases.
In summary
In conclusion, injunctions under the Family Law Act 1975 (Cth) are powerful legal tools designed to protect the safety, rights, and interests of individuals, children, and property during family law disputes. Whether it involves personal protection, property preservation, or ensuring compliance with court orders, injunctions may play a crucial role in maintaining stability and preventing harm while legal matters are resolved. The court has broad powers to issue various types of injunctions, including those for the protection of children (Section 68B), property or spouses (Section 114), de facto financial matters (Section 90SS), and even binding third parties (Section 90AF).
Additionally, the court can prevent the abuse of legal processes through vexatious proceedings orders (Section 102QB). However, obtaining an injunction requires strong evidence, careful consideration of the balance of convenience, and adherence to procedural fairness.
Note! This information is general in nature and not a substitute for legal advice. If you are facing a family law issue or considering applying for an injunction, it is essential to seek legal professional advice tailored to your specific circumstances.
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