Enforcement of Property Orders
The rules and procedures for the enforcement of property orders are contained in the Federal Circuit and Family Court of Australia (Family Courts) Rules 2021. Orders can be enforced in the Federal Circuit and Family Court of Australia (FCFCA).
Often, a property order provides for one party (the payer) to pay the other party (the payee) a sum of money. The sum may be classified as a property settlement, part property settlement, or interim property settlement. At times, the payer does not make the payment to the payee as required. 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 can apply to the court seeking enforcement of the obligation.
The first step to enforce a property order should be to seek information about the other party’s financial situation. This can be done by sending a written request to provide a Financial Statement within 14 days. This statement can then be filed with an affidavit in an application for an enforcement order. The applicant can ask the court to order the payer to attend an enforcement hearing at the court.
What orders can be made?
At a hearing, the court can 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, by a certain date or in instalments;
- an order to prevent the payer from disposing of property or wasting assets;
- an order stopping (staying) the enforcement of orders;
- an order for the confiscation of property; and
- an order appointing a receiver.
Other obligations may also be enforced, such as:
- 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.
A Duty Registrar can issue an enforcement warrant or third party debt notice to enforce a property order without the need to go to court.
An enforcement warrant authorises the seizure and sale of property to pay a debt. The warrant must be sent to the Sherriff’s Office in the state where the property is to be seized. It remains valid for 12 months.
Third Party Debt Notice
A third party debt notice requires a person or organisation (the third party) who is believed to owe money to the payer, to direct that money to the payee instead. A notice must be served on the third party and the payer.
A payer can be charged with contempt of court, fined or sent to prison if they do not comply with an order to:
- provide a Financial Statement;
- provide requested documents to a payee;
- attend an enforcement hearing;
- answer a question, or answer it satisfactorily.
For advice or representation in any legal matter, please contact Armstrong Legal.