injunctions can be obtained in the family court of australia, the federal circuit court
the two main requirements for the imposing of an injunction to stop a spouse from having anything to do with his or her property are:
- a reasonable claim to an order for changing property interests under s. 79 of the FLA.
- a danger that a claim under s. 79 of the FLA might be defeated or prejudiced unless an injunction is granted.
- See S. and S. (1981) FLC 91-027.
- Other factors may be considered, including
- if and how much the injunction will have an effect on the rights and position of third parties: see M. (1981) FLC 91-050, and S. & S. (1980) FLC 90-856;
- striking a balance between the hardships and convenience that may occur between the parties concerned: see S. and S.(1979) FLC 90-627;
- any specific interest that the applicant might have in a bit of property: see S. and S. (1981) FLC 91-027;
- if the injunction would negatively affect a spouse while performing other duties which do not arise in relation to the marital relationship like duties in relation to a family company.
A “Mareva” injunction is an order designed to restrain a person from taking property out of Australia or having dealings with property inside or outside of Australia.
The process for lodging an application for a Mareva injunction is laid out in the Family Law Rules 2004 (Cth) r 14.05 of an application must include an affidavit for support that takes into consideration specific matters in this rule, which include:
- why the applicant should believe that property of the respondent might be removed out of Australia;
- a statement regarding the amount of damage the applicant could suffer if no order is made;
- a statement concerning the identity of anybody, apart from the respondent, who might feel the effects of the order and in what way he or she is affected.
- The applicant often applies for this sort of order ex parte.
The court has to not only take into consideration issues that are related to the balancing of convenience and hardship to the specific parties but must also consider whether there is any intention of disposing of assets.
If a party has fair grounds for believing that someone has failed to admit the presence of documents or property on their property and there is a likelihood that the property could be disposed of as a way of defeating a claim under the FLA, this party may place an “Anton Pillar” order. This order allows a person to go into the other person's property and view or take documents or other property that may have some relevance to the case.
The process for lodging an application for an Anton Pillar order is laid out in r 14.04 of the FLR. This application must have an accompanying affidavit that takes into consideration certain issues that have been identified in this rule, which includes:
- any reasons the applicant might have that may indicate that the respondent may take away, change the document or property or destroy it unless an order is made;
- a statement about the damage the applicant is likely to suffer if the order is not made;
- the application can be made without giving any notice to the respondent but it must be served to the respondent at the same time that the order is then acted upon.
In deciding if a spouse is given exclusive use or occupation of the matrimonial home was revealed in the marriage of D. (1976) 11 ALR 445, where the Full Court said (at 448) that the court may make such order following the consideration of the needs and means of the particular parties, the children’s needs, any hardship that could occur to either party or to any of the children and, if relevant, the behaviour of one party which could be a justification for the other party to leave the home or asking for the first party to be expelled from the home.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.