Injunctions In Australian Family Law

Injunctions in Australian Family Law: Key Insights

Injunctions in Australian Family Law are court orders that either restrain a person from doing something or direct that person to take a specific action. These injunctions play a vital role during family law disputes. They protect individuals' safety, rights, and interests related to children, property, and more. Specifically, injunctions can address issues such as personal protection, property preservation, and compliance with court orders. Their primary purpose is 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—words or conduct—that demonstrate 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.
Injunctions should impose the least restriction necessary to protect the applicant’s claim. They should not be used to punish the other party or for ulterior motives.
The applicant must demonstrate that preserving the status quo is necessary to prevent their claim from being frustrated.
Injunctions are discretionary remedies; courts will not grant them lightly.
The applicant must prove with evidence that the injunction is proper, just, convenient, or necessary to achieve justice. It must also be reasonably necessary to protect their claim, and the balance of convenience must favor it.
A judge may require an applicant to undertake to compensate the respondent and any affected third parties for losses if the injunction is later found unjustified or if their substantive claim fails.
The court may make a costs order against a party seeking an injunction if their application fails due to insufficient evidence, poor drafting, or 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. Below are some types briefly explained.

Injunctions for the Personal Protection of a Child (Section 68B)

Injunctions In The Context of Australian Family Law — Injunction in Australian Family Law

Section 68B empowers the court to issue injunctions aimed at protecting the welfare of a child in family law proceedings. The court can make orders or grant injunctions to ensure the child's safety from harm. Personal protection injunctions may also be issued for individuals connected to the child, such as parents or caregivers. The court can restrain a person from entering or remaining in the child’s residence, workplace, or educational institution.

The court can also grant interlocutory injunctions, which are temporary orders, whenever it’s just or convenient to do so. Injunctions under this section can be granted unconditionally or with specific terms as the court deems appropriate. The focus is on safeguarding the best interests and welfare of the child through protective measures and by restraining harmful behaviors.

Injunctions in Relation to Property or Spouses (Section 114)

Section 114 grants the court authority to issue injunctions in family law matters involving personal protection for parties to a marriage, including restraining violence or harassment. Additionally, the court can prevent a party from entering the matrimonial home, the other party’s residence, or a specified area. It can also issue injunctions to protect the marital relationship and ensure property preservation.

For de facto relationships, similar injunctions apply regarding shared residential use. Sections 90SB and 90SK require the de facto relationship to meet certain duration and geographical criteria. The court can also grant interlocutory injunctions whenever it is just or convenient, ensuring compliance with court orders even in bankruptcy situations.

General Powers of Courts to Issue Injunctions (Section 90SS)

Section 90SS endows the court with broad powers to issue injunctions in de facto financial matters. This provision allows the court to issue injunctions in financial disputes similar to those available for married couples. This includes restraining a party from disposing of property or taking actions that harm the other party’s financial interests. Maintaining the status quo is crucial in these scenarios.

The court can issue interlocutory injunctions to uphold the status quo while proceedings are ongoing. These injunctions can be tailored with specific terms or conditions deemed appropriate. If a party to a de facto relationship is bankrupt, the court can issue injunctions restricting the bankruptcy trustee from distributing dividends to creditors.

Injunctions Binding Third Parties (Section 90AF)

Section 90AF allows the court to make orders that bind third parties in family law proceedings. This ensures that third parties, such as creditors or trustees, can be included in orders when necessary for fair property distribution. The court can restrain third parties from repossessing marital property or taking legal actions against a party to the marriage.

The court is only permitted to issue such orders if it is reasonably necessary to effect property division. Importantly, procedural fairness must be ensured for third parties involved. The court must consider relevant matters, such as tax implications and the ability of third parties to comply.

Prohibiting a Person from Instituting Any Proceedings (Section 102QB)

Section 102QB allows courts to issue vexatious proceedings orders to prevent individuals from abusing the legal system. Such orders can be made if a person has a history of initiating frivolous or meritless cases. The court has the authority to stay or dismiss existing proceedings and prohibit initiating new actions under the Family Law Act.

This provision protects the integrity of the legal system. It ensures courts can focus on legitimate cases and prevents individuals from engaging in vexatious litigation.

In Summary

In conclusion, injunctions under the Family Law Act 1975 (Cth) serve as essential legal tools for protecting safety, rights, and interests during family law disputes. Whether concerning personal protection or property preservation, injunctions play a critical role in maintaining order during legal proceedings. The court has wide-ranging powers to issue various types of injunctions, including those related to safeguarding children, property issues between spouses, and those affecting de facto relationships.

Injunctions can also bind third parties and prevent systemic abuse through vexatious proceedings orders. However, obtaining an injunction necessitates strong evidence, careful evaluation of the balance of convenience, and strict 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.