Financial orders made by a court are binding and enforceable and must be complied with. This article outlines ways of enforcing financial orders when a party has failed or refused to comply with them.
Before filing enforcement proceedings in financial matters, consider your desired outcome. If a party has refused, failed or neglected to comply with a financial order, the orders may include default provisions to facilitate the making of a payment (e.g. orders that the property be sold on default, or that the Registrar of the court may sign the documents on behalf of a defaulting party). An order may also be included for the payment of interest from the date of default to receipt of payment.
Refusal To Sign Documents
If the order does not contain a provision for the Registrar to sign a document on behalf of the person refusing to sign it, section 106A of the Family Law Act 1975 allows a party to apply for an order asking the court to appoint a person (usually the court’s Registry Manager) to sign the required document(s) on behalf of the defaulting party.
Registering The Order
If a financial order is made in a different court, a party to the order can apply for it be registered in the enforcing court.
Other Options
If a financial order is breached and default provisions in the orders do not remedy the situation, options for enforcement include the following.
Seeking an order that the defaulting party attends an enforcement hearing.
At the enforcement hearing the court may make an order:
- for enforcement or in aid of the enforcement of an obligation;
- for costs;
- that the total amount owing is to be paid in full or by instalments, and when it must be paid;
- requiring the defaulting party to attend an enforcement hearing, to give further evidence or information or file a financial statement;
- to prevent the dissipation or wasting of property;
- about the total amount owing;
- varying, suspending or discharging an enforcement Order;
- staying the enforcement of an obligation; and/or
- dismissing the Application.
Seeking an Enforcement Warrant
An Enforcement Warrant appoints an enforcement officer for the seizure and sale of real estate or personal property.
Until the debt is satisfied, the property remains subject to the enforcement warrant, which remains in force for twelve months. The enforcement officer has the power to sell the property, if necessary, to recover the debt.
If there is a risk that the defaulting party will, on becoming aware of the enforcement notice, abscond with property subject to the enforcement warrant, the enforcement officer can apply for a warrant of seizure and detention. This allows them to seize the items without giving the defaulting party prior notice.
Seeking a third party debt notice
A party may seek a third party debt notice, which requires a person or organisation which owes the defaulting party money to pay some or all of the debt to the applicant rather than to the defaulting party (e.g. from the defaulting party’s bank accounts or wages).
Because defaulting parties can take steps to avoid a third party debt notice (e.g. leaving their employment and refusing to disclose their new employer), a third party debt notice may be a last resort.
Sequestrator
A party may seek an order that a property be temporarily placed into the hands of a sequestrator, who can seize the defaulting party’s property and collect rent, takings and business profits towards payment of the amount due.
Receiver
A party may seek an order appointing a person as a receiver (or receiver and manager) of the defaulting party’s property or income. The receiver is entitled to receive any income due to the defaulting party from that property, and to pay the applicant monies owing under the original order.
There are rules about:
- the procedures to apply for procedural orders;
- the contents of supporting documents;
- the maximum period between the swearing and filing of supporting documents;
- how to apply for procedural orders (e.g. the remuneration of a sequestrator or receiver); and
- how a person affected by enforcement orders can object to it.
Where to now?
Contact Mid Mountains Legal for legal advice or representation in Family Law matters.
