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How to Enforce Family Court Orders

Rebecca Ward
Senior Associate
Barrister and Solicitor

Posted on 15/12/2016, Last Updated on 21/05/2020

 

Obtaining Family Court Orders can be a long, drawn-out process lasting many months if not years, so it can be particularly galling if the other party either consistently breaks these Orders or point-blank refuses to follow them.

So what can be done to force the other party to comply with and enforce Family Court Orders? This article explores which options are available to people seeking to enforce a Family Court Order.

 

Assessing the Gravity of the Breach

First of all, much will depend on the gravity of the breach in question, and what the potential effects of the other party’s conduct might be.  

In a parenting case, for example, is a failure to act to enforce the Orders likely to place the children at risk of some physical or emotional harm? In property cases, will the value of assets be reduced if compliance is not demanded? 

Or is the breach more trivial and annoying than serious? Will it be worth the time, stress and legal fees involved in enforcement?

 

Reasonable Excuse

One of the first things to consider before launching into enforcement warrants, enforcement hearings or contravention proceedings is to ask whether there might be a “reasonable excuse” for the breach, which will provide the other party with a defence to any action.

Under the Family Law Act (1975) and Family Court Act (1997), a person alleged to have breached a Family Court Order has a “reasonable excuse” if:

    1. they believe that breaching the Order was necessary to protect someone’s health or safety;
    2. the breach continued for no longer than was necessary; or
    3. the person committing the breach did not understand they were breaching the Order at the time.

 

Enforcement Warrants for Seizure and Sale of Property

Where no reasonable excuse is arguable, and the other party is refusing to comply with clear Orders then the prejudiced party can – in property proceedings – apply for an Enforcement Warrant for Seizure and Sale of the other party’s property.

This Application must be supported by an Affidavit setting out the facts and circumstances of the amount owing to the Applicant under the Orders.

If successful, a Bailiff will seize the other party’s property and sell it to recover the debt owed.

 

Enforcement Hearings

A less drastic remedy is simply to apply for an Enforcement Hearing, requiring a Form 2 Application in a Case and a supporting Affidavit.

This option is available to you if your former spouse owes you money, is refusing to sign ‘transfer of ownership’ documents, or is refusing to transfer possession of an asset to you.

If there are existing Orders of the Family Court or you have a signed Financial Agreement (otherwise known as a “Binding Financial Agreement”), Chapter 20 of the Family Law Rules 2004 provides an outline of the process involved in seeking to enforce financial orders and obligations.

The Court has a wide variety of powers available to it at an Enforcement Hearing including making injunctions and ordering payment by instalment.

 

Obtaining Financial Information

The Family Court can assist you to obtain information about the financial circumstances of your former spouse. After assessing the information presented by both parties, it has mechanisms available to recover the money or the asset.

There are various ways that you can obtain financial information from your former spouse (set out in Rule 20.10):

  1. Provide your former spouse with written notice to complete and serve a Financial Statement within 14 days (which can be done with or without having filed an application in the Family Court).
  2. File a Form 2 Application in a Case in the Family Court, together with a supporting Affidavit, setting out the type of enforcement order you are asking the Court to make and the facts in support of your application. For example, the production of financial documents; a warrant to seize property; a third party debt notice (which might require a bank to transfer monies, or an employer to garnishee wages).

There are significant other factors that need to be addressed in an enforcement affidavit. We recommend that you obtain legal advice and assistance in preparing your material.

The Family Court will consider an enforcement application without either party needing to physically attend Court if all necessary financial information has been received by the Court. If not, a hearing date will be listed.

It is not the Family Court’s role to investigate on your behalf. At the hearing, either you or your lawyer will need to ask questions of your former spouse about their current financial circumstances (known as “cross-examination”). This may involve examining bank accounts, assessing the availability of property to be seized, and/or analysing transactions entered into to avoid their obligation to you. 

The Family Court will be interested in any reasons for failure to pay, including current income, availability of other property, debts and resources.

There are penalties if your former spouse fails to provide financial information (set out in Rule 20.14). Your former spouse will be committing an offence if they fail to provide information or fail to attend the Court hearing (provided they had prior knowledge of the hearing date).

 

Orders that can be made to assist you

The Family Court has various powers (set out in Rule 20.07) and remedies (set out in Rule 20.05) to deal with matters of enforcement. The Court can order the amount owing to be paid in full or by way of instalments by a certain date and can make orders about what is to happen if payments are not made. For example:

  • to garnishee wages;
  • to seize and sell property (including real estate);
  • to order a bank to transfer money to you;
  • to prevent expenditure of money from bank accounts or the transfer of property to third parties;
  • or payment of legal costs and interest.

The Family Court also has power to order fines for non-compliance with obligations arising out of enforcement orders (section 112AD of the Family Law Act (Cth) 1975 for married spouses and section 226 of the Family Court Act (WA) 1997 for de facto spouses), and to issue a warrant for arrest for non-attendance at an enforcement hearing. It also can imprison a party for contempt of Court.

If there has been a breach of the terms of a Financial Agreement (rather than an Order of the Family Court) additional remedies are available for breach of contract and contractual damages.

 

Contravention Applications

A Contravention Application differs from an Enforcement Application in that the former seeks punishment or redress against the offending party, as opposed to simply implementation of the original Orders.

In a Contravention Hearing the Court can obviously enforce, but also vary the existing Orders, or otherwise fine the guilty party as well as make a costs order against them.

In extreme cases, the Court has been known to imprison persons for non-compliance.

 

Legal advice and assistance

If you are the beneficiary of Court Orders which the other party is failing to follow, then seeking enforcement – whether in relation to parenting or financial matters – might be something you wish to consider. Contact DS Family Law on 9486 1766 to discuss your options further.

At DS Family Law, we provide legal advice as to the evidence that is required for a successful enforcement application. We are adept at drafting persuasive material and providing strong representation.

We assist our clients in identifying the benefits of filing an enforcement application in the particular circumstances of their case, for example:

  • to demand that a former spouse to comply with orders;
  • to ascertain whether a former spouse has property available to ensure compliance;
  • to determine income and other assets that might be seized; and 
  • ultimately to finalise compliance issues between the spouses.

We encourage our clients to make a commercial decision when weighing up the associated legal costs versus the various benefits to them in bringing an enforcement application.

The above does not constitute specific legal advice but is general information only.

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