In family law proceedings in the Family Court of Australia and the Federal Circuit Court of Australia, Orders are usually made throughout the proceedings (Interim Orders) and at the conclusion of the proceedings (Final Orders). Orders agreed to by the parties and made by consent are given the same weight and treatment as Orders made by a Judge following a contested Hearing.
Often, Interim or Final Orders provide for one party to pay (payer) the other party (payee) a sum of money. Such sum may be classified as a property settlement, part property settlement, interim property settlement, spousal maintenance and/or a costs order. An obligation to pay money will also arise in the following circumstances:
- Pursuant to a registered Parenting Plan;
- An award made in arbitration and registered pursuant to the Family Law Act;
- A Maintenance Agreement (including a Variation or Revocation of a Maintenance Agreement) registered under or approved under the Family Law Act;
- A Financial Agreement or Termination agreement made pursuant to the Family Law Act;
- An overseas maintenance order or agreement that is enforceable in Australia; and
- A Child Support Liability.
At times, the payer does not make the payment to the payee in accordance with the obligation to do so. Some Orders and Financial Agreements include ‘default provisions’ in the event that the payment is not made, such as the automatic right to sell the property of the payer. However, if such default provisions are not included, the payee may make a further application to the Court seeking enforcement of the obligation.
The following obligations may also be enforced:
- An obligation for one party to sign a document (such as a Contract of Sale);
- An Order entitling a person to the possession of real property; and
- An Order entitling a person to the transfer or delivery of personal items.
The process to enforce Court Orders and other obligations are governed by the Family Law Rules 2004 (for Orders made by the Family Court of Australia) and the Federal Circuit Court Rules 2001 (for Orders made by the Federal Circuit Court of Australia). The two sets of rules are largely the same.
In circumstances where a party to Court proceedings seeks to enforce an order to pay money, an enforcement is sought by way of the payee filing an Application in a Case. An Application in a Case is filed even if the matter has been closed and final orders made.
The Application in a Case should set out what orders are sought. The Court has powers to make various orders to enforce an obligation to pay money, including:
- Declaring the total amount owing under the obligation;
- That the total amount must be paid, this may be in instalments and by a certain date;
- An order for the attachment of earnings and debts;
- An order for the confiscation of property; and
- An order appointing a receiver.
The Application in a Case is usually accompanied by an Affidavit that sets out:
- A copy of the orders or Financial Agreement to be enforced;
- The facts to be relied upon, including:
- The full name and address of the payee;
- The full name and address of the payer;
- That the payee is entitled to enforce the obligation;
- That the payer is aware of the obligation and is liable to satisfy it;
- That any condition has been fulfilled;
- Details about any dispute about the amount of money owned;
- The total amount of money currently owned, including nay interest and how the sum has been calculated;
- Any other legal action taken to enforce the obligation;
- Any other application on foot seeking to enforce the obligation;
- The amount sought for costs.
- The facts that support the orders sought, such as details about the payer’s ownership of real property if the application seeks to seize and sell real property.
Any Affidavit filed in support of an Application in a Case seeking enforcement must be sworn or affirmed no more than 2 days before it is filed.
Once filed, the Court will usually list the Application for a contested hearing date to consider the facts supporting the Application. The Payee will also have an opportunity to respond.
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