Family Court restrains husband from selling family properties

Family Court Injunctions

A family court judge recently made an interim order restraining a husband from selling any of his properties.

Acting for the wife, Opal Legal’s Liverpool family lawyers had lodged an application in the Federal Circuit and Family Court of Australia seeking that the husband be restrained from selling any of his real estate.

The wife had become aware that the husband was intending to sell two of his five properties.

The husband, represented by senior counsel, sought to be allowed to sell those properties.

Strongly arguing for the husband to be restrained from selling any of the properties, our client’s family law barrister submitted that:

The conduct of the husband, including him not making full and frank disclosure, militated for the granting of an injunction.
On the other hand, there could be no criticism of the wife’s conduct.
There was no irreparable prejudice to the husband.
If the orders sought were not made, the wife’s expected interest in the matrimonial pool could well be dissipated by the husband or disappear altogether.
The balance of convenience favoured the wife.

After considering affidavits of the parties, extensive documentary evidence, documents produced under subpoena and submissions by the parties’ family lawyers, the family court judge decided to restrain the husband from selling or dealing in any way with any of his real estate.

This injunction can only be lifted by a further order of the court or the written agreement of the parties.

What is an injunction?

An injunction is an order by a court compelling a person to do a specific act or, more commonly, to not do a specific act.

Can a family court grant an injunction in a property dispute?

Under section 114 (1) of the Family Law Act 1975, a family court has broad powers to make any order or grant such injunction, as it considers proper, with respect to circumstances arising out of a marital relationship.

The powers of the court extend to an injunction:

for the personal protection of a party to the marriage;
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
entering or remaining in a specified area of those premises where the other party lives.
restraining a party from entering the place of work of the other party;
for the protection of the marital relationship;
in relation to the property of a party to the marriage; or
relating to the use or occupancy of the matrimonial home.

Section 114(3) gives the court a separate power to grant an injunction “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”.

Can a family court grant an injunction in a parenting case?

Under section 68B(1) of the Family Law Act, a court has wide-ranging powers to grant an injunction in relation to a child. The court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including an injunction:

for the personal protection of the child;
for the personal protection of a parent of the child or a person with whom the child is to live, spend time or communicate under a parenting order;
for the personal protection of a person who has parental responsibility for the child;
restraining a person from entering or remaining in a place of residence, employment or education of the child; or in a specified area within it;
restraining a person from entering or remaining in a place of residence, employment or education of a parent of the child or a person with whom the child is to live, spend time or communicate under a parenting order; or in a specified area within it;
restraining a person from entering or remaining in a place of residence, employment or education of a person who has parental responsibility for the child;

Section 68B(2) gives a family court a separate power to grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.

An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate – see s 68B(3).

What factors does a Family Court consider when deciding whether to grant an injunction?

In Tsiang & Wu and Ors [2019] FamCAFC128, the Full Court of the Family Court of Australia summarised the legal principles a family court considers when deciding whether or not to grant an injunction:

The grant of an injunction is discretionary.
An applicant must first demonstrate first that there is a serious issue to be tried. In essence, it requires the demonstration of an arguable case or “a sufficient likelihood of success to justify in the circumstances the preservation of the status quo”.
Next, the applicant must demonstrate that the balance of convenience favours making the order sought. As part of this, the applicant must show that there is a “danger” or risk of dissipation of or dealings with assets which will frustrate any judgment in favour of the applicant.
It is unnecessary to demonstrate a positive intention, but merely the possibility of the event occurring. The determination about the balance of convenience may thus be an inference drawn from the facts and circumstances established by the applicant’s evidence.
It is not the role of the judge determining the question of the injunction to, in effect conduct a trial of the disputed evidence to resolve those disputes.

If you need urgent advice about obtaining or opposing an injunction in a family law case, feel free to contact our family law expert – Namrata Singh on (02) 8798 0457 or namrata@opallegal.com.au for a free initial consultation.