TOPIC 8: INJUNCTIONS AND FAMILY VIOLENCE ORDERS
PRELIMINARY MATTERS
(a) What is an injunction?
The object of an interlocutory injunction is to preserve matters pending the trial of issues in dispute. A
perpetual injunction is based on a final determination of the rights of the parties and is intended
permanently to prevent the infringement of those rights. In essence an injunction can serve either of
two functions:
 they can be a form of relief in their own right (eg a non-molestation order); or
 they can be a secondary form of relief (ie used to aid the relief sought).
(b) When should a court grant (interlocutory) injunctions?
American Cyanamid Co. v Ethicon Limited [1975] AC 396 (HL)
 Is there a serious question to be tried?
 What is the ‘balance of convenience’?
The general principles:
1. does the plaintiff have an arguable case?
2. analysing the balance of convenience (or) the balance of justice
3. are damages an adequate remedy?
(c) What sort of injunctions can be granted?
 Independent/permanent/perpetual
 Ancillary/interim/interlocutory
(i) ‘Mareva’: Mareva Compania Naviera SA v International Bulk Carriers SA [1975] 2 Lloyds R 509
(ii) ‘Anton Piller’: Anton Piller KG v Manufacturing Processes Ltd [1976] 1 Ch 55
Talbot & Talbot (1995) 18 Fam LR 685
1. an extremely strong prima facie case
2. the damage, potential or actual, must be very serious for the applicant
3. there must be clear evidence that the defendant has in his or her possession incriminating
documents or things
4. there is a real possibility that the defendant may destroy such material before the final hearing or
order can be made.
(1) INDEPENDENT INJUNCTIONS UNDER THE FAMILY LAW ACT 1975
(a) Section 114(1) (Property)
 matrimonial cause - section 4(e)
 discretionary
 proper
 (a) - (f): personal protection, restraining order (home and work), protection of marital relationship,
property (party to a marriage), use or occupancy of the ‘home’
(i)
personal protection and restraining orders: s 114(1)(a)-(c)
(ii)
injunctions for the protection of the marital relationship: s 114(1)(d)
(iii)
property injunctions: s 114(1)(e)
Stowe v Stowe (1981) FLC 91-027 at pp.76,273 and 76,274 the Full Court said ... in order to satisfy the Court that an injunction is necessary to preserve property, it is clearly
not sufficient to show that it may be proved later that the other party has a relevant interest in
the property. Some other factor must be established, for example, that unless an injunction is
granted the other party may dispose of or deal with the property, or with company or trust
property, in such a manner that there is a risk that any order made under Sec.79 will not be
met. Another factor, important in the present case, may be that the applicant for an injunction
has a special interest in the preservation of a particular item of property arising from the marital
circumstances (eg. the home).
(iv) exclusive occupation orders
(v) third parties and s 114(1)? - sham or puppet?
(vi) effect of s 114(2)?
Exclusive Occupation
Davis and Davis [1976] FLC 90-062
Page and Page [1981] FLC 91-025
Re Dovey; Ex parte Ross (1979) 141 CLR 526
Stowe and Stowe [1981] FLC 91-027
Davis and Davis [1983] FLC 91-319
Mullane v Mullane (1983) 158 CLR 436
Injunction re non-disclosure
Gibb and Gibb [1979] FLC 90-694
Parenting injunctions
F and F [1989] FLC 92-032
Flanagan and Handcock [2001] FLC 93-074. See topic 5
Ancillary injunctions
Sieling and Sieling [1979] FLC 90-627
Injunctions to preserve assets
When thinking of applying for an injunction to protect assets consider the following:
1 is there an actual or potential claim under the FLA?
2 Is there objective evidence of a disposition, an intention to dispose or a risk of disposal by the
respondent
3 Is there a risk that the disposition is likely to defeat any anticipated order in favour of the
applicant in substantive proceedings?
4 Do the injunctions sought extend beyond that which is necessary to protect the substantive claim
of the applicant?
Waugh (2000) FLC 93-052 Full Court “ ... whether the injunctions ... were necessary, and went no
further than necessary, to prevent abuse or frustration of the court’s process in relation to the matter
within its jurisdiction ...”
Mullen and De Bry (2006) FLC 93-293 Waugh did not set a threshold question as where a scheme to
defeat judgment exists. What the trial judge in Waugh failed to do was to consider whether there was
any evidence of any intention by the husband to dispose of any assets pursuant to any scheme to
defeat any judgment. What Waugh said was that the trial judge took a fundamentally flawed approach.
Ought to have addressed question of whether there was evidence of any intention as part of an enquiry
into the risk of disposal of assets to defeat judgment.
The Full Court discussed the principles to be applied. The power in s114(3) the court may grant an
injunction in any case where it is just or convenient to do it. Each case will involve an assessment of a
number of factors.
Injunctions and 3rd parties
Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337
Re Ross-Jones; ex parte Green [1984] 156 CLR 185
Blueseas Investments Pty Ltd v Mitchell and McGillivray [1999] FLC 92-856
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.
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
 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).
90AF(4) - the matters are as follows:
 taxation effect (if any) of the order/injunction on the parties to the marriage
 the taxation effect (if any) of the order/injunction on the third party
 social security effect (if any) of the order/injunction on the parties to the marriage
 third party's administrative costs in relation to the order/injunction
 if order/injunction concerns a debt of a party to the marriage - the capacity of a party to the
marriage to repay the debt after the order is made/injunction granted
Example: The capacity of a party to the marriage to repay the debt would be affected by that party's
ability to repay the debt without undue hardship.
 economic, legal or other capacity of third party to comply with the order/injunction
Example: The legal capacity of the third party to comply with the order or injunction could be affected by
the terms of a trust deed. However, after taking the third party's legal capacity into account, the court
may make the order or grant the injunction despite the terms of the trust deed. If the court does so, the
order or injunction will have effect despite those terms (see section 90AC).
 if, as a result of the third party being accorded procedural fairness in relation to the making of the
order/granting of injunction, the third party raises any other matters - those matters
 any other matter that the court considers relevant.
(b) Section 68B(1) - Children
 must be a child
 power is discretionary
 proper for child’s welfare
 including (but not limited to) paras (a) - (d) - personal protection of the child/adult carer or
restraining order in respect of the child/adult carer
(2) ANCILLARY INJUNCTIONS UNDER THE FAMILY LAW ACT 1975
(a) Section 114(3) - Property
 proceedings outside s 114(1)
 discretionary
 interlocutory or otherwise
 just and convenient
 unconditionally or conditionally
(b) Section 68B(2) - Children
 must be a child
 power is discretionary
 interlocutory or other
 must be just or convenient to make the order
NOTE: s 68B(3) states that the injunction under this section can be unconditional or “on such terms or
conditions as the court considers appropriate”
(3) INJUNCTIONS UNDER THE PROPERTY (RELATIONSHIPS) ACT 1984
(a) Property injunctions: s 38(1)(h)
 note Part III ‘jurisdictional hurdles’
 protect etc. property/financial resources and/or aid enforcement
(b) Other Part III injunctions: s 38(1)(k)
 again note Part III ‘jurisdictional hurdles’
 “make any other order or make any other injunction ... which it thinks necessary to make to do
justice”
(c) Personal protection: s 53
 ss 4/5 definition only (no additional ‘hurdles’)
 personal protection
 restraining order (residence/specified area/place of work/child’s place of work)
 use/occupancy of home
Seminara v Ferguson (1993) 16 Fam LR 410
(4) APPREHENDED DOMESTIC VIOLENCE LAWS UNDER STATE LAW
Links:
 www.lawlink.nsw.gov.au/lc.nsf/pages/avo_index
 www.lawlink.nsw.gov.au/lawlink/vaw/dvguidelines.nsf/pages/whatis
 (violence against women special unit)
http://www.lawlink.nsw.gov.au/lawlink/vaw/ll_vaw.nsf/pages/vaw_index
 (same-gender) http://www.ssdv.acon.org.au/
 (resource centre) http://www.dvirc.org.au/LibraryHub/Links.htm
 (clearing house) http://www.austdvclearinghouse.unsw.edu.au/
(a) Introduction
 New Act: Crimes (Domestic and Personal Violence) Act 2007 (10.03.08) (formerly Part
15A Crimes Act 1900)
 note (since 2000) distinguish between ADVO and an APVO
 “reasonable grounds to fear” is the key
 they are not criminal proceedings unless there is a breach of order (or stalking etc)
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Domestic Violence Advocacy Service: 1800 810 784
DoCS Domestic Violence Line: 1800 656 463
Victims Support line: 1800 633 063
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Meaning of ‘domestic relationship’ s 5
Meaning of ‘relative’ s 6
s 9(1) – Objects re domestic violence: ensure safety/protection all persons including children,
reduce/prevent violence, consistent with international obligations (DEVAW and UNCROC)
s 9(2) - Aims achieved by: court orders, access to justice
s 9(3) – Parliament recognises: domestic violence is unacceptable …
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Offences: s 13 stalking (5 years/50pu) “stalks or intimidates … with the intention of causing
the other person to fear physical or mental harm”
Offences: s 14 contravening AVO (2 years/50pu) “knowingly contravenes a prohibition or
restriction specified …”
s14 (3) not offence if was necessary to attend mediation or in compliance property recovery
order
s38 apprehended violence orders if makes order must include child under 18, not required if
satisfied good reasons for not doing so but must give reasons: s38(3)
(b) Complaint procedure – Pt 4 + 10 (ADVO)
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Application: s 15 (+ ss 47-87)
Applicant: s 15 ‘domestic relationship’ requirement ; s 48(2) application by ‘(a) a person for
whose protection the order would be made, or (b) a police officer”
Circumstances in which police must make application for order: s 49
Open court: s 58
Orders by consent: s 78
Court may make ADVO: s 16(1) “if it is satisfied on the balance of probabilities … reasonable
grounds to fear and in fact fears …”
Matters to be considered by court: s 17(1) “safety and protection of the protected person”; s
17(2) plus:
(a) effects of restricting access to def’s premises
(b) any ‘hardship’ (focus on protected person)
(c) accommodation needs of all relevant parties (again there is a focus on protected person)
Duration: s 79 “(1) for such period as is specified … by the court” (2) “as long as necessary”
(3) if not specified - 12 months
(c) Terms of an order
 Duration: s 79 “(1) for such period as is specified … by the court” (2) “as long as necessary”
(3) if not specified - 12 months
 Content and effect of AVOs: Pt 8
prohibitions and restrictions: s 35 (approaches, restricting access, restricting
possession
of firearms, restricting/interfering with property, restricting specified behaviour)
(d) Criminal Offences
 contravention of ADVO/APVO (s 14)
 stalking, intimidation (s 13)
 appeals to District Court
Interaction Family Law Act and State protective laws
 Division 11 purpose of division is to resolve inconsistencies between family violence orders
and orders injunctions and parenting arrangements FLA: s68N
 If court makes order person spend time with a child and its inconsistent with family violence
order must give detailed explanation: s68P
 if an inconsistent order is made then the family violence order is invalid: s68Q
 State Court making family violence order may vary parenting order