The Family Law Act sets out options available to parties to seek enforcement of Orders in relation to financial matters. Regrettably, in some cases, it can become necessary to seek enforcement of Orders where a party is not compliant with Orders of the Court.
When can I seek enforcement of Orders?
Enforcement can be sought where pursuant to Orders, maintenance agreements or Binding Financial Agreements made pursuant to the Family Law Act:
There is an obligation on a party to pay money;
There is an obligation on a party to sign a document;
A party is entitled to possession of real property; or
A party is entitled to transfer or delivery of personal property.
Although less common, there are other circumstances in which a party can take enforcement action against a non-compliant party, such as there where a party has registered an arbitral award, a child support liability or where there is an overseas maintenance order that has been registered in Australia.
How do I enforce Orders?
Methods of enforcement available to a party seeking compliance with Orders pursuant to the Family Law Act include:
Appointing a Registrar of the Court
A Registrar of the Court can be appointed to sign documents in place of a non-complaint party, such as Transfer documents in order to progress the transfer of a house, transferring shares or, closing bank accounts.
Third Party Debt Notice
A Third Party Debt Notice requires a third party to discharge a debt by redirecting funds to which the non-compliant party would otherwise be entitled, to the party seeking enforcement. For example, a party seeking enforcement could seek that the non-compliant party’s wage be directed to them instead over a period of time in order to satisfy a debt.
Trustee for sale of real property
If an Enforcement Warrant has been obtained in relation to real property in which the non-compliant party has an interest, a party can seek to be appointed as Trustee for Sale of real property. If a party is appointed as Trustee for sale it will generally be necessary to also seek that a Registrar of the Court be appointed to execute documents on behalf of the non-compliant party (as above).
Warrants for possession of property
A party seeking enforcement of Orders can apply for a warrant for possession of real property, personal property, or for the seizure or detention of property owned by the non-complying party, which can then be sold, for example, to satisfy a debt.
There are other forms of relief available to a party seeking enforcement of Orders, including sequestration of property, receivership and seeking that a non-complaint party be declared bankrupt. It is likely that the Court would only adopt such methods of enforcement if other attempts at enforcement had been exhausted or there were circumstances justifying forms of enforcement that could be considered severe or prejudicial to the non-compliant party.
Can I seek that my legal costs be paid by the non-compliant party?
The Court has general powers of enforcement, including the power to make Orders that one party pay the other party’s costs. Although costs to do always “follow the event” i.e., the winning party does not always get their costs reimbursed, the Court is sometimes more inclined to order that a non-compliant meet the other party’s costs of enforcement, arising out of the non-compliant party’s failure to comply with an Order of the Court, as it has been unfair that the applicant has had to pursue such steps.
For specialist family law advice including about enforcement, contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.
Author: Margot McCabe