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, injunctions are sought in relation to financial matters and parenting matters.

Financial matters

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

The court has far-reaching powers to restrain a party from doing a particular thing. Examples include restraining a party from:

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

Granting an injunction

Section 114 of the Family Law Act 1975 allows the court to make injunctions. The court must be satisfied that making the order is just and convenient, and it can be made with or without conditions.

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

The criteria for the court to grant an injunction are:

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

If the applicant seeks urgent injunctive relief, and the applicant’s claim evidences a high level of risk, the court may dispense with procedural fairness (i.e. the injunction being served and listed for hearing at short notice) and make an “ex parte” decision (i.e. in the absence of the other party). The next hearing date is generally set within 2 to 3 weeks, before which the applicant must serve a copy of the injunction on the other party.

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

Section 106B of the Act 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 attempts to reduce the asset pool available for division by disposing of an interest in a company or property to a family member. In those circumstances, the applicant can seek an order that the court reverse the transaction to retain the property as part of the property to be divided.

Parenting matters

Section 68B of the Act allows the court to grant an injunction for the welfare of a child in parenting proceedings, including an injunction for:

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

Enforcement

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

If an injunction is contravened, the person protected by the injunction can file a contravention application with the court seeking 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
• harassing or molesting 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.

Here to Help

Contact us for free no-obligation initial telephone advice regarding Family Law injunctions.