How do I enforce Family Court Orders?
The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 provide the rules and procedures relating to the enforcement of property Orders of the Court. These rules are complicated, and it is in your best interests to seek experienced legal advice prior to commencing these types of proceedings.
When is enforcement required?
One party (the payee) may be entitled to money or property pursuant to: an Order of the Court, a maintenance agreement, a financial agreement, a child support assessment or child support agreement, however, the other party (the payer) may be unwilling or unable to comply with their obligation.
What obligations and orders can be enforced?
A Court may enforce:
- An obligation to pay money;
- An obligation to sign a document;
- An Order entitling a person to the possession of real property; and/or
- An Order entitling a person to the transfer or delivery of personal property.
What do I need to do when seeking an enforcement Order?
Often, a person seeking an enforcement Order will be required to file an affidavit along with their application. Their affidavit must:
- State the Order sought;
- Have attached to it a copy of the Order or agreement to be enforced;
- Set out the facts relied on; and
- Demonstrate what steps were taken to facilitate the defaulting party’s compliance, together with the defaulting party’s refusal to comply.
What types of enforcement Orders are available?
The Court can make four types of enforcement Orders:
- An Order for seizure and sale of property under an Enforcement Warrant;
- An Order for the attachment of earnings and debts under a Third-Party Debt Notice;
- An Order for sequestration of property; and/or
- An Order appointing a receiver.
What powers does the Court have when making an enforcement Order?
The Court has significantly vast powers of enforcement. Amongst other things, the Court may make an Order:
- Declaring the total amount owing under an obligation;
- Stating that the total amount owing must be paid in full, or by instalments, and when the amount must be paid;
- For payment of a child support liability;
- For enforcement of an obligation to pay money;
- In aid of the enforcement of an obligation;
- To prevent the dissipation or wasting of property;
- For costs;
- Staying (stopping) the enforcement of an obligation;
- Requiring the payer to attend an enforcement hearing;
- Requiring a party to give further information or evidence;
- That the payer must file a Financial Statement;
- That the payer must produce documents for inspection by the Court;
- Dismissing an application; or
- Varying, suspending, or discharging an enforcement Order.
How do I obtain the payers Financial Information?
Before applying for an enforcement Order, a payee may:
- Give a payer written notice requiring the payer to complete and serve a Financial Statement within 14 days after receiving the notice; or
- By filing an Application in a Proceeding, together with an affidavit, apply for an Order without notice to the respondent:
- Requiring the payer to complete and file a Financial Statement; or
- Requiring the payer to disclose information or produce to the payee copies of documents relevant to the payer’s financial affairs.
What penalties are related to enforcement?
Although there is a general rule in Family Law proceedings that each party is to pay their own legal costs, when it comes to enforcement proceedings, the Courts regularly depart from this general rule. If the applicant (payee) is successful, the other party (payer) may be ordered to pay the applicant’s legal costs. If an application is unsuccessful, then the applicant may be ordered to pay the other party’s legal costs.
There are significant penalties associated with failing to comply with a Court Order. These include the possibility of: being charged with contempt of court (a criminal offence), being fined, or even sent to gaol.
How we can help
Each individual case will warrant a different method in order to seek enforcement of Family Court Orders. The appropriate method is dependent upon the terms of the Order breached, the nature of the breach, and the availability of steps to be taken to remedy that breach. In some cases, it may be necessary to first require the payer to attend an enforcement hearing, or to produce documentation, in order to ascertain the financial position of the payer. In other cases, an Order can be sought to have documents or instruments signed by an Officer of the Court or other person, on an individual’s behalf, where the individual has refused or neglected to comply with the Court’s initial direction.
As there are a wide variety of methods at a party’s disposal to seek enforcement of Court Orders, dependent on: the nature of the case, the Orders, and the breach, it is prudent to seek the legal advice of an experienced Family Lawyer prior to engaging in this process.
The JurisBridge Legal Family Law team have a wealth of experience in enforcement of Court Orders relating to all types of circumstances. If you would like to talk to us about enforcing Court Orders, or any other Family Law matter, please do not hesitate to contact us on +61 2 8355 3737 or fill out the enquiry form here.