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FAMILY LAW ACT 1975 - SECT 90AF

Court may make an order or injunction under section 114 binding a third party

             (1)  In proceedings under section 114, the court may:

                     (a)  make an order restraining a person from repossessing property of a party to a marriage; or

                     (b)  grant an injunction restraining a person from commencing legal proceedings against a party to a marriage.

             (2)  In proceedings under section 114, the court may make any other order, or grant any other injunction that:

                     (a)  directs a third party to do a thing in relation to the property of a party to the marriage; or

                     (b)  alters the rights, liabilities or property interests of a third party in relation to the marriage.

             (3)  The court may only make an order or grant an injunction under subsection (1) or (2) if:

                     (a)  the making of the order, or the granting of the injunction, is reasonably necessary, or reasonably appropriate and adapted, to effect a division of property between the parties to the marriage; and

                     (b)  if the order or injunction concerns a debt of a party to the marriage--it is not foreseeable at the time that the order is made, or the injunction granted, that to make the order or grant the injunction would result in the debt not being paid in full; and

                     (c)  the third party has been accorded procedural fairness in relation to the making of the order or injunction; and

                     (d)  for an injunction or order under subsection 114(1)--the court is satisfied that, in all the circumstances, it is proper to make the order or grant the injunction; and

                     (e)  for an injunction under subsection 114(3)--the court is satisfied that, in all the circumstances, it is just or convenient to grant the injunction; and

                      (f)  the court is satisfied that the order or injunction takes into account the matters mentioned in subsection (4).

             (4)  The matters are as follows:

                     (a)  the taxation effect (if any) of the order or injunction on the parties to the marriage;

                     (b)  the taxation effect (if any) of the order or injunction on the third party;

                     (c)  the social security effect (if any) of the order or injunction on the parties to the marriage;

                     (d)  the third party's administrative costs in relation to the order or injunction;

                     (e)  if the order or 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 or the injunction is granted;

Note:       See paragraph (3)(b) for requirements for making the order or granting the injunction in these circumstances.

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.

                      (f)  the economic, legal or other capacity of the third party to comply with the order or 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).

                     (g)  if, as a result of the third party being accorded procedural fairness in relation to the making of the order or the granting of the injunction, the third party raises any other matters--those matters;

Note:       See paragraph (3)(c) for the requirement to accord procedural fairness to the third party.

                     (h)  any other matter that the court considers relevant.



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