How to enforce a Court Order in the Family Court of Australia
Enforcing a court order made by the Family Court is a complicated process. It is wise to consider getting legal advice before proceeding with its application.
Some of the pertinent provisions are embodied under Part 25B of the Federal Circuit Rules 2001 and its process in the Family Court is laid down in Chapter 20 and 21 of the Family Law Rules 2004.
Family law orders are not automatically enforced. In a case both parties failed to reach an amicable settlement, they should consider applying for a court order. Upon application, the parties need to provide the court with the facts in order for it to decide whether an enforcement order is proper.
Enforceable obligations under the law
Under Chapter 20.01, enforcement of financial orders and Obligations of the Family Rules 2004, Enforceable Obligations are:
- An obligation to pay money;
- An obligation to sign a document under section 106A of the Act;
- An order entitling a person to the possession of real property; and
- An order entitling a person to the transfer or delivery of personal property.
The obligation to pay money, as stated in subsection (2) of Chapter 20.01, includes the following:
- 1. A provision requiring a payer to pay money under:
- a. An order made under the Act, the Assessment Act or the Registration Act;
- b. A registered parenting plan;
- c. An award made in arbitration and registered under section 13H of the Act;
- d. A maintenance agreement registered under subsection 86(1) of the Act;
- e. A maintenance agreement approved under section 87 of the Act;
- f. A financial agreement or termination agreement under Part VIIA of the Act;
- g. An agreement varying or revoking an original agreement dealing with the maintenance of a child under section 66SA of the Act; or
- h. An overseas maintenance order or agreement that, under the Regulations, is enforceable in Australia;
- 2. A liability to pay arrears accrued under an order or agreement;
- 3. A debt due to the Commonwealth under section 30 or 67 of the Registration Act;
- 4. A child support liability;
- 5. A fine or the forfeiture of a bond; and
- 6. Costs, including the costs of enforcement.
Recovering money and the enforcement order
A party who is seeking the assistance of the Court to recover a monetary obligation incurred to him by another must first acquire the financial circumstance of the person who owes him money (Payer). It can either be through sending him a notice to produce a financial statement within 14 days or by applying directly to the Court for an order to that effect. Once the financial information is obtained the person who seeks the assistance (payee) can apply for any of the following pursuant to the provisions of the family court:
- Enforcement warrant – This can be filed to the court which aims to nominate an Enforcement Officer to seize and sell the properties of the payer in order to satisfy the obligation that he had incurred. The payee must file an enforcement warrant, the form is supplied by the court, and an affidavit to support the issuance thereof. Its effect includes:
- Property seized will remain subject to the enforcement and it may only be released by full payment of the total amount owed; sale; order of the court; or consent of the payee;
- In case the payer fulfils his full obligation, he must immediately inform the Enforcement Officer in order for his property to be released.
- Third Party Debt Notice – An application for a third party debt notice must be filed with the prescribed form supplied by the Court and an affidavit in support thereto. A Third Party Debt Notice allows the payee to recover a specified amount that the payer owes to him from a Third Party which has a monetary obligation to the Payer. An example of which is in case of the Employer of the Payer. The Employer is considered the third party in which the Third Party Notice is issued. The Third Party may either comply with the order or dispute the same.
Enforcement Hearing – The purpose of an enforcement hearing is to acquire the necessary facts to help the enforcement of a court order or other obligations and in cases of dispute, to help the court to arrive at a just decision. At the hearing proper, the Court may issue an order with regards to the Enforcement of the Original Order as well as the following:
- Sequestration of property – The court may issue an order that the property subject of the case be placed in the care of a sequestrator. He is allowed by law to collect rents, profits of the property or prevent any person from entering the same. He is also obliged by law to pay any amounts owing to the payee under the Order of the Court.
- Receivership – The receiver in a receivership order is entitled by law to receive any income due to the payer for the property in question as well as to pay any amounts owing therefrom.
Both of these orders are only temporary and the person (sequestrator/receiver) should only act in accordance with the rights and obligations imposed by law and the order of the court.
Who may file for an enforcement order
The law allows several persons to file for an enforcement order with regards to their specific case. As laid down in Chapter 20.04 of the Family Law, these are:
- Any Party to the case in case the obligation emanates from an Order of the Court;
- Either the Party, the Child or a person entitled to enforce an obligation for the Party or the Child in cases of obligation from an Order to pay money for the benefit of the Party or the Child;
- The Marshall or an Officer of the Court in cases of an obligation arising from a fine or an order that a bond will be forfeited; and
- A person entitled under the Registration Act in cases of an obligation arising from a Child Support Liability
Affidavit for filing an enforcement order
A person who wanted to apply for an enforcement order needs to file a sworn affidavit together with the attached copy of the order or agreement that needs to be enforced. As provided in Chapter 20.06 of the family law, it must also state the pertinent facts of the application which includes:
- Name and Address of the Payee and Payer;
the Payee is entitled to the proceedings of the enforcement of the obligation;
- the Payer is aware of the obligation and that he is liable to comply with it;
- all the condition has been fulfilled;
- details and attending circumstances attending the dispute with regards to the amount of the obligation;
- the total amount of the money owed and the details of its calculations including the interest and the date and amount of the payments that have already been made;
- Other legal action, whether pending or not, that has been taken to enforce the obligation;
- Details of any other applications to the enforcement of the obligation; and
- The amount of the costs as well as the proposed enforcement, if it is being claimed by the party.