3 Mar 2016

In general, the Family Court makes orders that bind the parties to the proceedings (being the parties to the marriage) only. However, the Court also has the power to make orders to bind third parties in particular circumstances.  A “third party” is defined in section 4 of the Act as being any party who is not a spouse party. This is quite broad, and may include relatives, friends, creditors and business associates of one or both parties to the marriage.  Under section 90AA of the Family Law Act 1975 (Cth) (“the Act”), the Court has the power to:

a) make property order under section 79 of the Act; or

b) grant an injunction under section 114 of the Act;

that alters the rights, liabilities or property interests of a third party.

 

Property Orders Binding a Third Party

The Court can make the following types of property orders to bind a third party (s90AE(1) of the Act):

a) for a creditor of the parties to the marriage to substitute one party for both parties in relation to the debt;

b) for a creditor of one party to a marriage to substitute the other party, or both parties, to the marriage for that party in relation to the debt;

c) for a creditor of the parties to the marriage that the parties be liable for a different proportion of the debt; or

d) for a company to register a transfer of shares from one party to the marriage to the other party.

 

The Court can only make these orders if the following criteria are met (s 90AE(3) an 90AE(4) ):

a) the order is reasonably necessary or appropriate to bring about a property division between the parties;

b) it would not foreseeably result in the debt not being paid in full;

c) the third party has been given procedural fairness;

d) it is just and equitable to make the order; and

e) the order takes into account the following matters:

i) the taxation effect on the parties to the marriage;

ii) the taxation effect on the third party;

iii) the social security effect on the parties to the marriage;

iv) the third party’s administrative costs in relation to the order;

v) the capacity of a party to the marriage to repay the debt;

vi) the economic, legal or other capacity of the third party to comply with the order;

vii) any matter raised by the third party; and

viii) any other relevant matter.

Given all of the above, the Court is quite conservative in exercising its power to interfere with third party property interests.

 

Injunctions Binding a Third Party

An injunction is a particular type of order that either:

a) restrains a party from acting in a certain way; or

b) compels a party to act in a certain way.

 

Under sections 90AF(1) and 90AF(2) of the Act, the Court may make the following types of injunctions to bind a third party:

a) injunction restraining a third party from repossessing property of a party to a marriage;

b) injunction restraining a third party from starting legal proceedings against a party to a marriage; or

c) injunction directing a third party to do a thing in relation to the property of a party to the marriage.

 

Again, the Court must be satisfied that the following conditions (set out in sections 90AF(3) and 90AF(4) of the Act) are met before it makes an injunctive order binding a third party:

a) the injunction is reasonably necessary or appropriate to effect a property division between the parties;

b) it would not foreseeably result in the debt not being paid in full;

c) the third party has been given procedural fairness;

d) in all the circumstances, it is proper, just a convenient to make the injunction; and

e) the injunction takes into account the following matters:

i) the taxation effect on the parties to the marriage;

ii) the taxation effect on the third party;

iii) the social security effect on the parties to the marriage;

iv) the third party’s administrative costs in relation to the injunction;

v) the capacity of a party to the marriage to repay the debt;

vi) the economic, legal or other capacity of the third party to comply with the injunction;

vii) any matter raised by the third party; and

viii) any other relevant matter.

 

This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters please contact our office on Freecall 1800 609 945 or email us now.

100 years of Supporting West Australians

"Always fast and thorough service. Thank you"

Sitka Pil

My circumstances at the time I made contact with HHG were dire following my argument being rejected by two no win no fee firms. Following my initial meeting with HHG's employment law team I was left feeling extremely positive by the response and concern shown by HHG in regards to their support of my argument along with their preparedness to pursue an outcome on my behalf.

I accept the fact that nobody really wins in these cases (mental health/ workplace) however the end result was what would be considered most favourable and far in excess of what would have been achieved had I not sought the advice from HHG.

I have no hesitation in recommending HHG to anyone caught up in the messy circumstances I found myself in at the time.

Great advice and five-star commitment to their client!!"

Nathan Lynch

"Thank you for such great assistance with the transaction of Flying Domestics on behalf of Lorna Good. It has been such a pleasure to work with the HHG Legal Group and I look forward to working with you in the future."

Jim Goodwin

"Simon Creek and his team were at all times empathic, professional and confident.  My matter needed to be addressed within a pressing time frame, and their availability at short notice and contact after hours was much appreciated.  It caused me considerable stress, but having such a thoroughly reliable and competent team to call on helped me to feel in control. Although I hope not to need their services again in future, I would be confident in doing so!"

Dr Lana Bell

"A good outcome is what we can expect.  A great outcome is a sign of a company which does the very best for their clients. A very big thank you to Daniel Morris for showing empathy towards my small and much needed legal action.

To HHG Legal Group, thank you for a great outcome.  I would recommend your company to anyone seeking legal services."

Jan Atkinson

"Your support this morning was amazingly kind, not to mention your totally reassuring competence, knowledge and wisdom that you used on my behalf.  It was extremely reassuring to have your knowledgeable support, and I particularly appreciated your real and obvious kindness to me. It means so much at a very difficult time. I'm so grateful to you."

Family Law Client

"Janene was very professional and we established a good rapport quickly. The subject of death and wills can be quite confronting to deal with, however, Janene's approach was soft and accommodating."

Lynette Livesey

"A big thank you to HHG for their professional service, continued support, and wide range of legal knowledge. Our clients have given us nothing but kind words regarding HHG Legal Group and so we have no hesitation in referring and recommending Simon Creek and HHG Legal Group for their outstanding services and legal expertise."

Nigel Plowman, Director at McKinley Plowman & Associates

"Simon is a friendly and practical legal advisor. I have received great feedback from the clients I have referred to him and his team at HHG Legal Group."

Richard Beal, Director at BDO

"Over the last few years, I have been impressed by Simon’s legal ability, management skills, entrepreneurial spirit, personal integrity and people skills. He appears to be that rare breed of lawyer – both knowledgeable and commercial."

Michael Malone, Founder of iiNet

"Our family has been a client of HHG Legal Group over many years.  Business has included drawing up of wills for three generations and preparing of probate for my father in law. I would have no hesitation in recommending HHG Legal Group to anyone requiring such services."

Bernice Climie

"You should be congratulated for the manner in which your staff address clients and we found our dealings with your company, once again a very pleasant experience and we would like to truly thank you for your efforts."

Steve Harvey and Jane Powell

"HHG Legal were absolutely fantastic. Extremely responsive and brought calm to our chaotic family situation through their knowledge and caring attitude. Extremely professional from our very first contact with them and they expertly guided our family though the required legal process over almost a 12 month period."

Amanda Williamson

"Fantastic team! They really care about their client. Tim Colcutt is a 'go that extra mile' guy who gives his client his all. I can't recommend HHG and Tim enough."

Kerry Samson

"I had a fantastic lawyer in Anne Hurley. She helped me out a great deal with good, sound advice in a friendly, professional manner. First class, thanks Anne"

Graeme Hammond

"Marine Plant Systems has been working with HHG Legal Group for a few years now and they continually provide first-class service. Their professional advice has been invaluable to our company."

Carolin Grimm - Marine Plant Systems

"We were kept up to date at all times. Pricing was always updated over the time period so we remained "in budget". Personal access to someone whenever I had questions. All in all a great experience without too much fuss."

Rosslyn Tasker - COO AltusQ Pty Ltd

"Good service you can count on."

Miles Lee

"HHG Legal Group has provided outstanding support as I have taken the journey of buying a business, their professionalism is beyond reproach. Their assistance throughout the Due Diligence process has been invaluable, I would fully recommend them."

Mark Armitage

"Very friendly and efficient service - what a pleasure working with Anne."

Jacques Taylor

"I highly recommend Daniel from HHG Legal Mandurah. When dealing with a complicated legal property matter recently I was extremely impressed by Daniel's honesty and integrity and the legal advice I received. I am very happy with the service from HHG Legal."

Tony Walker