Injunctions

Family Law Injunction Perth

Before reading this information guide, please read the pages about property settlement, restraining orders, parenting orders, mediation, spousal maintenance and consent orders.

An injunction is an order made by the court to restrain a person from doing any act or thing. Injunction orders may also be positive, meaning that they can require a person to do an act or thing.  Injunctions may be obtained in financial and children’s cases.  Injunctions are often made by consent.

A party may need to apply to obtain an injunction if they want the other party to be restrained from doing any act or thing or they want the other party to do an act or thing.

In theory it is possible to have a property settlement almost immediately upon separation.  However, parties usually wait a number of months, and sometimes years, before they try to resolve their financial matters with the other party.

Until the matter is properly finalised it may be possible for one of the parties to sell, encumber, dispose of, or otherwise deal with some or all of the significant assets.  It is important that a party obtain advice about asset preservation before the other party can deplete the asset pool.

Parties should not rely on verbal assurances from the other party.  There may be simple steps that can be taken to have peace of mind and secure the assets pending a proper property settlement.

To obtain an injunction from the Family Courts without the consent of the other party, a party will have to file an application supported by evidence usually in the form of an affidavit.  An injunction may be sought on an urgent, interim or final basis.

In proceedings in relation to children, the courts may make any injunction that it considers appropriate for the welfare of the child including:

  1. for personal protection; and
  2. restraining a person or the child from leaving, entering or remaining in a certain place.

The court in exercising their jurisdiction and discretion may grant an injunction in relation to a child being an interim or otherwise in any case in which it appears to be just or convenient.  The injunction may be granted unconditionally or on such terms and conditions as the court considers appropriate.

The power to grant an injunction in relation to children’s proceedings is very broad.  In considering whether to grant an injunction the courts must have regard to the best interests of the child.

If there is an injunction in place in relation to a child then a police officer may arrest that person without warrant.

If you answer positively to the following questions you may need to obtain an injunction:

  1. Has a party threatened to remove or not return a child?
  2. Has there been domestic violence?
  3. Has a party denigrated you in front of the child?
  4. Has a party not returned a child on time?
  5. Is a party abusive at handovers?
  6. Is a party using illicit drugs or consuming alcohol to excess?
  7. Is a party threatening to change the name of the child?
  8. Is a party not taking the child to school or sporting events?
  9. Has a party been charged with a serious offence?
  10. Has party been dealing with the child in an offensive or inappropriate manner?
  11. Is a party not acting in the best interests of a child?

In financial proceedings, the courts may make such order or grant such an injunction it considers proper including:

  1. for personal protection;
  2. from entering or remaining in the former matrimonial home or any other area;
  3. for protection of the marital relationship;
  4. in are in relation to the property of the parties of a marriage;
  5. and in relation to the use or occupancy of the former matrimonial home.

The courts in exercising their jurisdiction and discretion may grant an injunction, interlocutory order or otherwise, in any case in which it appears just or convenient and do so unconditionally or on such terms and conditions as deem necessary.

The courts now have the power to grant an injunction against a third party including:

  1. from commencing proceedings;
  2. from repossession of property; and
  3. any other order or grant any other injunction that alters the rights, liabilities or property interests of a third party.

The courts must consider a number of matters before making such an order against a third party and in particular that in all the circumstances is just and convenient to grant the injunction.  The court have a very large discretion.

There are additional requirements that the court must consider when granting an injunction against a third party.  See our information guide about third parties.

In considering whether to grant an injunction the call will have regard to the following including:

  1. Whether there is a serious question to be tried.
  2. The balance of convenience of the parties.
  3. Whether damages are an appropriate remedy.
  4. Whether an undertaking as to damages had been provided by the applicant.

The circumstances in which the family courts will grant an injunction will vary on a case by case basis.  There is a significant body of case law in relation to injunctions, but each case turns on its own facts.  Therefore it is important to obtain advice promptly from an experienced family lawyer.

In financial cases, injunctions are important, to ensure that both parties do not take any steps to encumber, dispose or otherwise transfer any assets pending an agreement being reached or orders being made between the parties.

Some examples of when injunction is relevant include as follows:

  1. The parties wish to dispose of assets after separation and then deal with the proceeds of sale proceeds after the sale, pending a final agreement being reached by the parties.
  2. The parties or one party operates a business and to ensure that that party continues to operate the business in a reasonable manner pending the outcome of any property settlement.
  3. Ensuring access to the former matrimonial home and to whether the care control of the children.

If the court has made an injunction then in the event of a breach a police officer who believes on reasonable grounds may arrest the person without warrant.

The family courts have a very large discretion to grant an injunction and upon what terms and conditions an injunction will be granted.

The rationale and the need for injunctions stems from the fact that not every case both the parties necessarily act in good faith.  In a perfect world there would clearly be no need for injunctions.  But often one of the parties may take steps to diminish or damage the rights of the other party.

Everyone has heard of cases where after a separation in the heat of the moment one of the parties has taken steps to damage property of the other party.

If you answer positively to the following questions you may need to obtain an injunction:

  1. Does a party solely control real estate?
  2. Does a party solely control a business?
  3. Has a party been threatening, abusive or offensive in any way?
  4. Has a party removed or damaged property?
  5. Has a party threatened to cause you any harm or damage?
  6. Does a party have access to significant shareholdings or cash?
  7. Has a party threatened to leave the country?
  8. Is there a risk of assets being transferred offshore?
  9. Are there any significant assets overseas?
  10. Has a party removed financial documents?
  11. Has a party taken steps to block your access to financial resources?
  12. Is a piece of real estate going to be sold?
  13. Has a party threatened or engaged in any conduct likely to lead to cause loss or damage?

The practitioners at Beacon Family Law regularly apply for and obtain injunctions.  We have seen a number of cases where failure to obtain an injunction promptly has significantly reduced the asset pool available for distributions due to the deliberate conduct of the other party.

If you become aware that the other party intends to dispose of an asset then you may be able to apply to the Family Court to obtain injunctions or undertakings to restrain the other party from disposing of that asset.

We are able to advise you about asset preservation and your ability, if necessary, to apply to the Family Court of Western Australia to obtain injunctions and other remedies.