Orders can be enforced in the Family Court of Australia or the Federal Circuit Court of Australia. The Family Court deals with more complicated matters, including those where there are more than two parties, valuations of complex interests in trusts or corporate structures, or complex issues concerning superannuation, such as valuations or matters involving legal principles.
In other instances, the application should be filed in the Federal Circuit Court.
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, tell the court what the problem is and they will decide if an enforcement order is needed.
In the first instance, it may be advisable to find out information about the other party’s financial position. You can send them a written notice to provide a Financial Statement within 14 days.
Once you have that information, you can file an affidavit that contains all of the information required by the rules together with copies of the enforcement order required.
The following applications are dealt with by a Duty Registrar with no need to go into court:
- An Enforcement Warrant. This 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.
- A Third Party Debt Notice. This requires a person or organisation (the third party) who is believed to owe money to the payer to pay that money to you rather than to them (for example, it could be for be wages). If the issue of the Notice is granted, you must serve a copy of it on the payer and on the Third Party.
You can ask the court for an order that the payer attends an enforcement hearing at the court. You must file an application, together with an affidavit containing all of the information required in the rules, a list of the documents you want to see as proof of their financial circumstances, and a written notice demanding those documents.
These must be served on the payer at least 14 days before the hearing date with a copy of the Family Court brochure called Enforcement Hearings. At least 7 days before the hearing the payer must complete a Financial Statement and serve it on you.
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.