1. TOPIC 8:
INJUNCTIONS
Family Law Topic 10

2. PRELIMINARY MATTERS (a) What is an injunction?
Injunction can serve one of either two functions
form of relief in own right (eg permanent)
secondary form of relief (eg interlocutory)
Family Law Topic 10

3. PRELIMINARY MATTERS
(b) When should a court grant (interlocutory) injunctions?
general principles
applicant has an arguable case
convenience/justice
damages adequate?
Family Law Topic 10

4. PRELIMINARY MATTERS (c) What type of injunctions can be granted?
Independent, permanent and perpetual
Ancillary, interim and interlocutory
(i) ‘Mareva’ injunction
(ii) ‘Anton Piller’ order
- extremely strong case
- damage very serious
- clear possession evidence
- real possibility of destruction
Family Law Topic 10

5. (1) Independent Injunctions Under FLA
(a) Scope of s 114(1)
discretionary
as it thinks proper
paragraphs (a) - (f)
(a) personal protection order (home)
(b) restraining order (home)
(c) restraining order (work)
(d) marital relationship
(e) property injunction
(f) exclusive occupation order
Family Law Topic 10

6. (1) Independent Injunctions Under FLA
(a) Scope of s 114(1)
(i) personal protection and restraining orders: s 114(1)(a)-(c)
(ii) protection of marital relationship: s 114(1)(d)
(iii) property injunctions: s 114(1)(e)
(iv) exclusive occupation order: s 114(1)(f)
(v) third parties and s 114(1)? - sham or puppet? (but now note effect of Pt VIIIAA)
(vi) effect of s 114(2)?
Family Law Topic 10

7. (1) Independent Injunctions Under FLA
(a) Scope of s 114(1)
Impact of Pt VIIIAA?
90AF(1) - in proceedings under s 114 court may:
make an order restraining a person from repossessing property of a party to a marriage; or
grant an injunction restraining a person from commencing legal proceedings against a party to a marriage.
90AF(2) - in proceedings under s 114, court may make any other order, or grant any other injunction that:
directs a third party to do a thing in relation to the property of a party to the marriage; or
alters the rights, liabilities or property interests of a third party in relation to the marriage.
Family Law Topic 10

8. (1) Independent Injunctions Under FLA
(a) Scope of s 114(1)
90AF(3) - court may only make an order or grant an
injunction under 90AE(1)/(2) if:
making of order, or granting of injunction, is reasonably necessary etc to effect a division of property between the parties to the marriage
if order or injunction concerns a debt of a party to the marriage - it is not foreseeable at time order made, or the injunction granted, that to make the order/grant the injunction would result in the debt not being paid in full
third party has been accorded procedural fairness in relation to the making of the order or injunction
Family Law Topic 10

9. (1) Independent Injunctions Under FLA
(a) Scope of s 114(1)
90AF(3)
for an injunction/order under s 114(1) - court is satisfied that, in all the circumstances, it is proper to make the order/grant injunction
for an injunction under s 114(3) - court is satisfied that, in all the circumstances, it is just or convenient to grant injunction
court is satisfied that order or injunction takes into account the matters mentioned in subsection (4).
Family Law Topic 10

10. (1) Independent Injunctions Under FLA
(a) Scope of s 114(1)
90AF(4) - the matters are as follows:
taxation effect (if any) on the parties
the taxation effect (if any) on the third party
social security effect (if any) on the parties
third party's administrative costs in relation to the order/injunction
if concerns a debt of a party - the capacity of a party to repay the debt after the order is made
economic, legal or other capacity of third party to comply with the order/injunction
if, as a result of the third party being accorded procedural fairness in relation to the making of the order, the third party raises any other matters - those matters
Family Law Topic 10

11. (1) Independent Injunctions Under FLA
(b) Scope of s 68B(1)
Part VII - children
discretionary
as it considers proper for the welfare of the child
paragraphs (a) - (d)
(a) personal protection (child)
(b) personal protection (carer)
(c) restraining order (child)
(d) restraining order (carer)
Family Law Topic 10

12. (2) Ancillary Injunctions Under the FLA
(a) Scope of s 114(3)
discretionary
interlocutory or otherwise
just and convenient
unconditionally or on terms
Effect re third parties?
Ascot Investments (1981)
BUT now: Pt VIIIAA
Family Law Topic 10

13. (2) Ancillary Injunctions Under the FLA
(b) Scope of s 68B(2)
discretionary
in relation to a child
interlocutory or otherwise
just and convenient
unconditionally or on terms: s68B(3)
Family Law Topic 10

14. (3) Injunctions Under the PRA
(a) Property Injunctions: s 38(1)(h)
(i) protection of property or resources; or
(ii) to aid enforcement
note: Part III ‘hurdles’
(b) Other Part III Injunctions: s 38(1)(k)
any other injunction
necessary to do justice
Family Law Topic 10

15. (3) Injunctions Under the PRA
(c) Personal Protection:
s 53
four categories:
(a) personal protection
(b) restraining order (residence)
(c) restraining order (work)
(d) exclusive occupation order
Family Law Topic 10