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INJUNCTIONS
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INJUNCTIONS

In order for you to stop another person from affecting your financial interests in property, denigrating you in front of your children, amongst other matters that would encroach your rights, you may need to seek an injunction.

 

An injunction is a Court order that restrains a person from behaving in a particular way or restrains them from dealing with property. For example, you might be able to seek an injunction preventing your partner from selling the Matrimonial Home that is held under his or her name. The injunction would therefore protect your rights in the property pending final resolution of the property settlement dispute.

 

Injunctions can be sought under section 68B of the Family Law Act 1975 (for proceedings in relation to children), or section 114 of the Family Law Act 1975 (for proceedings in relation to property or other matrimonial causes). The effect of a section 68B injunction can be similar to the conditions imposed under an AVO.

 

Section 68B of the Family Law Act 1975 provides that the Court can make an injunction as it considers appropriate for the welfare of the child, including:

  1. An injunction for the personal protection of the child;

  2. An injunction for the personal protection of:

    • a parent of the child;

    • or a person whom the child is to live under a parenting order; or

    • a person with whom the child is to spend time with under a parenting order; or

    • a person with whom the child is to communicate under a parenting order; or

    • a person who has parental responsibility for a child.

  3. An injunction restraining a person from entering or remaining in:

    • A place of residence, employment or education of the child; or

    • A specified area that contains a place of a kind referred to in the above subparagraph.

  4. An injunction restraining a person from entering or remaining in:

    • A place of residence, employment or education of a person referred to in paragraph (b); or

    • A specified area that contains a place of a kind referred to in the above subparagraph.

The Court hearing the application for injunctive relief under section 68B may grant an injunction in relation to a child by interlocutory order (or interim order) in any case in which it appears to the Court that it would be just and convenient to do so.

Section 114 of the Family Law Act 1975 provides the Court with other powers to grant injunctions for court proceedings relating to property and other matrimonial causes. Section 114 provides that in proceedings relating to property or a matrimonial cause, the Court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including:

(a)  an injunction for the personal protection of a party to the marriage;

(b)  an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated;

(c)  an injunction restraining a party to the marriage from entering the place of work of the other party to the marriage;

(d)  an injunction for the protection of the marital relationship;

(e)  an injunction in relation to the property of a party to the marriage; or

(f)  an injunction relating to the use or occupancy of the matrimonial home.

Section 114(2A) provides the Court with similar powers to grant injunctions in court proceedings for de facto couples. In a de facto financial cause (other than proceedings referred to in, or relating to, paragraph (e) or (f) of the definition of  de facto financial cause in subsection 4(1) of the Family Law Act 1975) the Court may:

(a)  make such order or grant such injunction as it considers proper with respect to the use or occupancy of a specified residence of the parties to the de facto relationship or either of them; and

(b)  if it makes an order or grants an injunction under paragraph (a)--make such order or grant such injunction as it considers proper with respect to restraining a party to the de facto relationship from entering or remaining in:

(i)  that residence; or

(ii)  a specified area in which that residence is situated.       

(c)  make such order or grant such injunction as it considers proper with respect to the property of the parties to the de facto relationship or either of them.

 

Sections 90SB and 90SK apply in relation to an order or injunction under this subsection in a corresponding way to the way in which those sections apply in relation to an order under section 90SM. This subsection does not apply to proceedings referred to in paragraph (g) of the definition of  de facto financial cause that relate to proceedings referred to in paragraph (e) or (f) of that definition. The same requirements in sections 90SB (length of relationship etc.) and 90SK (geographical requirements) for section 90SM orders must be satisfied for orders and injunctions under this subsection.

 

A court exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.

If a party to a marriage is a bankrupt, a court may, on the application of the other party to the marriage, by interlocutory order, grant an injunction under subsection (3) restraining the bankruptcy trustee from declaring and distributing dividends amongst the bankrupt's creditors.

 If a party to a marriage is a debtor subject to a personal insolvency agreement, a court may, on the application of the other party to the marriage, by interlocutory order, grant an injunction under subsection (3) restraining the trustee of the agreement from disposing of (whether by sale, gift or otherwise) property subject to the agreement.

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