Enforcement of Property Orders
Updated on Jan 16, 2023 • 5 min read • 462 views • Copy Link
Enforcement of Property Orders
The Federal Circuit and Family Court (Family Law) Rules 2012 set out the rules and procedures for the enforcement of property orders in family law matters. Orders can be enforced in the Federal Circuit and Family Court of Australia (FCFCA).
Enforcement of property orders
The rules about the enforcement of property orders are quite complicated, and it is in your best interests to get legal advice before proceeding.
To enforce an agreement or liability, you must first get a court order. If under your financial orders you need a document to be signed (for instance, to transfer money or to sell property) and the payer refuses to sign it, you can ask for an order that the court appoint a person to sign the document/s on their behalf.
Otherwise, in your application for an enforcement order, you should tell the court what the problem is and it will decide if an order is needed.
Financial disclosure and enforcement
It may be advisable to find out information about the other party’s financial position before taking any other action. You can send the other party a written notice to provide a Financial Statement within 14 days.
Once you have information about the other party’s financial position, you can file an affidavit that contains all of the information required under the rules as well as copies of the enforcement order required.
Some applications are dealt with by a Duty Registrar without the need to go into court. These applications are made by filing three copies of the application together with an affidavit with the Registry of the Federal Circuit and Family Court of Australia.
These applications include:
An application for an Enforcement Warrant.
This application is made under Rule 11.15 of the Federal Circuit and Family Court (Family Law) Rules 2021.
An enforcement warrant authorises the seizure and sale of property to pay an outstanding debt. If your request is granted, the warrant is issued and returned to you. It must then be sent to the Sheriff’s Office in the state where the property to be seized is, for execution, together with the prescribed fee. The enforcement warrant remains in issue for 12 months from the date it was issued.
An application for a Third Party Debt Notice.
This application is made under Rule 11.34 of the Federal Circuit and Family Court (Family Law) Rules 2021.
A Third Party Debt Notice requires a person or organisation (the third party) who is believed to owe money to the respondent to pay that money to the applicant rather than to the respondent. An example is where the respondent’s employer is asked to pay wages owed to the respondent directly to the applicant to discharge a debt owed by the respondent. If the issue of the Notice is granted, the applicant must serve a copy on the respondent and on the third party.
Enforcement of property orders hearing
Under Rule 11.11 of the Federal Circuit and Family Court (Family Law) Rules 2021, if a person (the payee) is owed money by another person (the payer), they can ask the court for an order that the payer attends an enforcement hearing.
The person must file an Application—Enforcement and an affidavit together with an affidavit, a list of documents the payee wants to see as proof of the payer’s financial circumstances, and a written notice demanding those documents.
These documents must be served on the payer at least 14 days before the hearing date with a copy of the brochure Enforcement Hearings. At least seven days before the enforcement hearing date, the payer must complete a Financial Statement and serve it on the payee.
Possible outcomes of a property orders hearing
At a hearing, the court can make any of these orders:
- a declaration of the amount that is owing under the obligation
- an order that the amount is paid in full by a certain date or by instalments
- the issue of an enforcement order
- an order to prevent the payer disposing of their property or wasting their assets
- an order for the payment of costs
- an order stopping (staying) the enforcement of the orders
- an order for sequestration of property. Before doing this, the court must be satisfied that it is the most appropriate method for enforcing the obligation. It can authorise the sequestrator to, for example, collect the income from the property including rent, profits or business takings to pay the debt.
- an order appointing a receiver (or receiver and manager). They can collect any income owed to the payer from property and pay the amounts owing to you under the initial order. They cannot sell the property.
A contempt of court charge or a fine may be imposed upon a payer, or the payer may be sent to prison, if they fail to comply with an order to:
- serve their Financial Statement
- produce the requested documents to the payee
- attend the enforcement hearing
- answer a question, or
- give a satisfactory answer to a question.
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