Starling & Darby

The applicant sought an injunction under s 114(3) of the *Family Law Act 1975* (Cth) and sought to enforce orders made by consent. The respondent argued that the court lacked jurisdiction to grant the injunction or enforce the orders, as final consent orders had already been made and the proceedings were no longer "before the Court" in the manner contemplated by the *Family Law Rules 2004*. The application was heard by Faulks DCJ.

The central legal issues before the Court were whether an application for an injunction under s 114(3) of the *Family Law Act* requires proceedings to be currently before the Court, and whether enforcement under Rule 20.05 of the *Family Law Rules* is limited to proceedings of the sort stipulated in those Rules. Further, the Court considered whether its general power under s 34 of the *Family Law Act* enabled it to make any order that was "just and equitable" after final consent orders had been made, and whether a subsequent judicial review and determination of those final consent orders would alter substantive rights or be just and equitable. The Court also considered the distinction between a "declaration" and a "determination".

Faulks DCJ reasoned that the Court's jurisdiction under s 114(3) of the *Family Law Act* is engaged only when proceedings are currently before the Court. His Honour found that once final consent orders were made, the original proceedings were concluded, and therefore the Court lacked the necessary jurisdiction to grant the injunction sought. Similarly, the Court determined that enforcement under Rule 20.05 was contingent on the existence of proceedings of the type specified in the Rules, which were absent in this instance. The Court also held that the general power under s 34 of the *Family Law Act* did not extend to reopening or altering final consent orders in the manner sought by the applicant, as this would impermissibly affect substantive rights and was not just and equitable.

The application was dismissed. The applicant was ordered to pay the costs of and incidental to the respondent in relation to these proceedings, with the exception of the costs of the first hearing day on 14 September 2007, for which a costs order had already been made. The matter was subsequently removed from the pending cases list.