what are you options if your partner refuses to obey a financial court order?
what is the law on enforcement orders?
In this article we will look at your options to force your partner to comply with a Property or Financial order made by the Court.
When the Court makes a financial order under the Family Law Act 1975, each party is bound to follow the Order. The Court can order that you must pay an amount of money to the other person before a certain time, or it can order that a person transfers or sells property, and it can compel you to sign documents. That all seems very straightforward, but what happens if the other party fails to comply with the Order?
You have different options to force compliance with financial orders; including seeking legal advice and attending dispute resolution. In this article we will focus on Enforcement Orders. We will look at what the law says about Enforcement, we will discuss procedural aspects of the enforcement process, we will explain what happens at the hearing and look at the possible orders that the Court may consider.
The Court encourages people to try and resolve their issues before applying to Court. Dispute resolution services are designed to help you to resolve your issues without needing to go to court. It is often a quick and affordable option.
Please look at some of our other articles on this website for more information about dispute resolution options.
If none of the dispute resolution options are successful, and your partner is still refusing to comply with the order, your only option might be to apply to the Court for an Enforcement Order.
When will you apply for an order?
The Court will not automatically enforce family law orders; if you cannot resolve the issue on your own, you can apply to the Court for certain orders.
The process in the Federal Circuit Court is set out in Part 25B of the Federal Circuit Rules 2001.
Before we discuss the law, it should be said that the law on Enforcement Orders is complicated and you should seek legal advice before you initiate any proceedings in court to enforce the order.
In summary Part 25B states the following:
- Filing an application
- An application must be in accordance with the approved form.
- With the application you must file an affidavit stating the facts necessary to enable the Court to make the order that you are seeking, i.e. specify the problem, and
- Attach a copy of the order, agreement or undertaking that the Court is asked to enforce, or that is alleged to have been contravened.
What will happen at the hearing?
- The Court will inform the respondent of the allegation, and
- Ask the respondent whether he/she admits or denies the allegation, and
- Hear evidence supporting the allegation, and
- Provide the respondent with the opportunity to respond to the evidence/allegation, and
- Hear any evidence that the respondent wishes to present, and
- After considering all the evidence the Court will determine the proceedings and decide if an order is needed to enforce the existing order.
See the section below on Enforcement Hearings for more information.
If the other party (the respondent) fails to attend the hearing (in person or by a lawyer) the Court can do one of three things:
- It can determine the proceedings
- Issue a warrant for the respondent’s arrest, or
- Adjourn the application to a later date
Some orders may provide for an officer of the Court that made the order to sign the document on behalf of the person refusing to sign. In such a case, you need to notify the Court that made the original order and advise that the person refused to sign the documents and request that the relevant officer sign the document. Usually you will be required to make an affidavit stating the facts. If a state or territory court made the original order, you will generally contact the registry of that court.
If your original order did not provide for an officer of the Court to sign on behalf of the default person, section 106A of the Family Law Act provides that you can apply for an order and ask the original court to appoint a person, usually the Registry Manager of the Court, to sign the document on behalf of the defaulting party.
You apply to the Court most appropriate for your case. A family lawyer will be able to advise you on which court to contact, but generally the following applies.
The Family Court of Australia and the Federal Circuit Court operate independently but share jurisdiction in all family law matters. You can apply to either, but if your matter is currently proceeding in the Family Court, you should apply to the Family Court.
The Family Court deals with more complex matters, such as valuation of complex interests in trusts or corporate structures, financial issues involving multiple parties or complicated issues regarding superannuation and so on.
In all other cases you should apply to the Federal Circuit Court. It deals with less complex matters and matters are usually decided quickly.
The first step is to obtain information about the financial circumstances of the person who has not paid the money (the payer). This can be achieved by one of the following:
- Giving the payer written notice to provide a Financial Statement within 14 days
- Applying to the Court for an order that the payer must disclose information or produce copies of documents relevant to his/her financial circumstances
A party to a financial case is legally obligated to make full and frank disclosure of their financial affairs.
Once you have a clear picture of the payer’s financial situation, you can apply to court for one of the following enforcement processes.
You can apply to the Court for an Enforcement warrant, without notice to the payer. Basically it means that you are asking the Court that the property of the payer may be sold to pay the money owed to you. The enforcement warrant authorizes the nominated enforcement officer to seize and sell property of the payer to enforce the warrant.
To apply for an enforcement warrant you need to file:
Copies of the completed Enforcement Warrant sought
An affidavit complying with Family Court Rules or the Federal Circuit Court Rules. You need to state all the relevant facts in the affidavit, including the name and address of the payer, that the payer is aware of the obligation, that any conditions have been fulfilled, that the property belongs to the payer and details of the amount of money owed to you.
See Family Law Rules 2014 – Rule 20.06 and 20.16 for details of what to include in the affidavit.
Take note: You are liable to pay the enforcement officer any reasonable fees and expenses relating to the enforcement, but you are entitled to recover those fees and expenses from the payer under the Enforcement Warrant.
You can apply to the Court to issue a Third Party Debt Notice, without notice to the payer or the relevant third party. A relevant third party could for example be the payer’s employer or a bank. A Third Party Debt Notice requires a person or an organization (the third party) who allegedly owes money to the payer (debtor) to pay that money directly to you instead of to the payer (debtor).
You can apply for a Third Party Debt Notice when you are owed money under an order, an agreement or for a child support liability.
Take note: It is your responsibility to get all the relevant information to satisfy the Court that it is an appropriate situation to consider a Third Party Debt Notice. In some cases you might have to first apply for an enforcement hearing (see below) to obtain the necessary information about the debtor’s financial position before asking for a Third Party Debt Notice.
To apply for a Third Party Debt Notice you need to file:
- A copy of the Third Party Debt Notice, and
- An Affidavit setting out the facts to support your application. The affidavit must comply with Family Court Rules or the Federal Circuit Court Rules (depending on which Court you are applying in).
See Family Law Rules 2014 – Rule 20.06 and 20.16 for details of what to include in the affidavit.
If the Court issues the Third Party Debt Notice, you must serve the sealed document on the payer and on the third party. You have to serve The Third Party Debt Notice Brochure with the Notice to the third party informing them of their rights and obligations.
The third party has the option of complying with the order, or they may apply to the Court to dispute the order. They may also apply for procedural orders
You can apply to the Court that the payer must attend an enforcement hearing. This hearing will allow you to get information about the financial affairs of the payer who owes you money.
Rules 20.11-20.14 of the Family Law Rules 2004 and Rules 25B.17-25B.20 of the Federal Circuit Court Rules 2001 regulates Enforcement Hearings.
To apply for an enforcement hearing you file:
- An Application in a Case, and
- An affidavit complying with the relevant Court Rules.
At least 14 days before the hearing you have to serve the following on the payer:
- The Application
- The Affidavit
- A list of documents the payer must produce, and
- A written demand to produce these documents, and a copy of the Enforcement Hearing Brochure
In return the payer must complete and file a Financial Statement at least 7 days before the enforcement hearing date.
At the Enforcement hearing the respondent (the person who owes you money) must produce all the required documents. He/she will also be asked about the reason for the failure to pay.
The payer and any witnesses may be cross-examined about the financial position of the payer and his/her ability to pay the financial obligation.
The Court will consider all the relevant evidence and make an order that the Court considers to be just and fair, including an order for:
The Court orders that property be temporarily placed under the control of a sequestrator. The sequestrator can then:
- Collect rent, profits or takings of a business, or
- Prevent persons from entering the property, and
- Pay any amount owing to you under the initial order.
Take note: Any person affected by a sequestration order can apply to the Court for procedural orders.
The Court can appoint a person as the receiver of the payer’s property or income. The receiver can:
- Receive any income due to the payer from that property, and
- Pay amounts owing to you under the initial order
- Take note: The receiver does not have the authority to sell the property. Any person affected by the receivership order can apply to the Court for procedural orders.
- Any other order/s that the Court may consider appropriate
The Registry will prepare the Order and post a copy to the relevant parties.
It is always advisable to seek legal advice before you make a decision to apply to the Court. Your lawyer can explain your rights and responsibilities to you and explain how the law will apply to your particular issue. Your lawyer might even be able to assist you to get your partner to comply with the Order, without going to Court.
Choose a family lawyer with experience in this field; it is important to understand the procedure and the law applicable to enforcement orders. If you cannot afford your own lawyer, you can contact the Family Relationships Advice Line or a Legal Aid advice line.