TOPIC 8: INJUNCTIONS Family Law Topic 10

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

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

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

(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

(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

(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

(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

(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

(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

(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

(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

(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

(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

(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