Complying with financial orders
In a financial order, a court can order a person to do any of the following:
- pay money to another person by a certain time
- transfer or sell property,
- sign documents.
When a financial order is made, each person bound by the order must follow it.
If a person has refused to obey an order about property or financial support made under the Family Law Act, your options include:
- consulting a lawyer
- attending dispute resolution,
- filing an appropriate enforcement application with a court.
Get legal advice
You should get legal advice before deciding what to do. A lawyer can help you understand your legal rights and responsibilities, and explain how the law applies to your case. A lawyer can also explain and help you reach an agreement without having to go to court.
You can get legal advice from a:
- legal aid office
- community legal centre, or
- private law firm.
Court staff can help you with questions about court forms and the court process, but cannot give you legal advice. If you need legal help, get advice from a lawyer.
Family dispute resolution
Family dispute resolution is always preferable to taking court action to resolve disputes. However, this is not suitable for matters where there is family violence.
You and the other party can attend community-based family dispute resolution before making a court application. If an agreement is reached, you may apply to court for consent orders to vary the original order, which is no longer appropriate.
To find a community service near you visit Family Relationships Online located on the right under Website links, or call on 1800 050 321.
Why might you have to apply for enforcement of orders?
Courts do not automatically enforce family law orders, so if you cannot reach an agreement, you may consider applying to a court for orders. You have to tell the Court what the problem is in an application. The Court decides if an order is needed to enforce the existing order. Below are some examples of what you can do if you cannot resolve the issue with your former partner.
You can apply to the Federal Magistrate Court. If you have current proceedings in the Family Court, you should apply to the Family Court.
The law on enforcement of orders
The law on enforcement of orders is complicated. You should get legal advice before starting any proceedings to enforce a court order.
The process in the Federal Magistrates Court is set out in Part 25B and Schedule 5 of the Federal Magistrates Rules 2001. The process in the Family Court is set out in Chapter 20 and 21 of the Family Law Rules 2004.
There are different processes you may consider depending upon the type of order or obligation you are seeking to enforce. Some of these are detailed below.
What if a person refuses to sign a document?
The existing orders may provide for the document to be signed on behalf of the person refusing to sign (defaulting person) by an officer of the Court that made the order. If it does, you need to notify the Court that made the original order that the person has refused to sign the document/s and ask for the relevant officer to sign the document/s. An affidavit is usually required stating the facts. Check with the Family Law Registry nearest to you. If the order was made by a state or territory court, you generally should contact the registry of that court.
If the orders do not provide for this, you can seek an order under section 106A of the Family Law Act, asking for the original court to appoint a person, usually the Registry Manager of the Family Law Court, to sign the document/s in the name of the defaulting party.
How do you seek an order?
You can apply to the Court most appropriate for your case.
The Family Law Courts comprise the Federal Magistrates Court and the Family Court of Australia. The courts share jurisdiction in all family law matters and you can apply to either court.
The Family Court deals with more complex matters. These may include, for example if the financial issues in your case involve multiple parties, valuation of complex interests in trust or corporate structures including minority interests, or complex issues concerning superannuation (for example valuation or matters of legal principle).
All other applications should be filed in the Federal Magistrates Court. The Federal Magistrates Court deals with less complex matters that are likely to be decided quickly.
You may prefer to seek legal advice before choosing the court in which to file your application.
The forms you must use and the processes you must follow depend on which Court you apply to; the courts have different application forms and different requirements associated with filing an application. For further information go to the Forms section of this website, visit a family law registry near you.
The enforcement process to recover money in the Federal Magistrates Court
If a person fails to meet his or her financial obligations under a family law order or child support assessment, you may ask the Court to issue a Notice Requiring Financial Information or an Enforcement Summons.
A Court registrar will only issue a Notice Requiring Financial Information or an Enforcement Summons if he or she is satisfied that the payer has failed to comply with the order. The registrar will usually be satisfied of this where the payer has failed to make a payment for a period of at least two weeks.
When you file a Notice Requiring Financial Information or an Enforcement Summons, you must file an affidavit requesting that the Court issue the notice or summons. Your affidavit must:
- contain evidence in support of the request
- state whether any other order is in force for the enforcement of the obligation
- state whether any other proceedings for the enforcement of the obligation are pending
- state the name of the person who has taken proceedings on behalf of a party or child for the enforcement of an order for the payment of maintenance or other money (if such proceedings have been taken), and
- be accompanied by the requested form of notice or summons.
When it receives the affidavit and the appropriate form, the Court may issue the Notice Requiring Financial Information or Enforcement Summons.
An Enforcement Summons must be served on the payer, who must attend Court as required by the summons and answer questions and/or produce documents as required; see Order 33 Rule 3 (6) of the Family Law Rules 1984, set out in Schedule 5 of the Federal Magistrates Court Rules 2001. If the payer fails to attend Court as required, the Court may issue a warrant for the payer to be arrested and brought before the Court.
At the end of the examination, the Court can make orders to enforce the original order. These orders include:
- a garnishment order in respect of any money owed to the payer, including wages
- the seizure and sale of property
- sequestration of property
- the sale of an interest in property
- a charging order, creating a charge over land or property of the debtor
- any other order considered necessary to enable enforcement of the obligation or to prevent the disposal of property or the wasting of assets.
The enforcement processes to recover money in the Family Court
Obtaining information about the payer
If you are seeking to enforce the order, you may chose to first obtain information about the financial circumstances of the payer (person who has not paid the money). This can be done by one of the following:
- giving the payer written notice to provide a Financial Statement within 14 days
- applying to the Court for an order for the payer to disclose information or produce copies of documents relevant to the payer’s financial affairs.
Once information is available or if you already have sufficient information, you may apply for one of the following enforcement processes:
- enforcement warrant
- third party debt notice
- an enforcement hearing to seek:
- sequestration of property
- receivership, or
- other appropriate order/s.
Enforcement warrant
You can apply to the Court, without notice to the payer, for an enforcement warrant. The enforcement warrant enables the nominated enforcement officer to seize and sell property of the payer to enforce the warrant.
What forms to file?
To apply for an enforcement warrant, you need to file:
- an Enforcement Warrant, and
- an affidavit in support (stating the facts to support your application).
See Rules 20.06 and 20.16 in the Family Law Rules 2004 about the information you should include in the affidavit.
Third Party Debt Notice
You can apply to the Court, without notice to the payer or the relevant third party debtor (for example, an employer of the payer), to issue a Third Party Debt Notice. This notice requires the third party debtor to pay the payee a specified amount of money (for example, an employer to pay sums of money from the payee’s wages).
What forms to file?
To apply for a Third Party Debt Notice, you need to file:
- a Third Party Debt Notice, and
- an affidavit in support (stating the facts to support your application).
See Rules 20.06 and 20.32 about the information you should include in the affidavit.
Service
If the Court issues a Third Party Debt Notice, you must serve the sealed document on the third party debtor and the payer. The third party debtor must either comply with the notice or may apply to the Court to dispute the liability or seek procedural orders.
For some information about Third Party Debt Notices and the process see the fact sheet ‘Third Party Debt Notices - information for the third party debtor’ under the 'Publications' section.
Enforcement hearing
You may apply to the Court for an order that the payer attends an enforcement hearing. For more information see the fact sheet ‘Enforcement hearings’ under the 'Publications' section. At the enforcement hearing the Court may make orders to enforce the original order including:
- sequestration of property,
- receivership.
What is sequestration of property?
The Court can order a property to be temporarily placed in the hands of a sequestrator. The sequestrator can:
- collect rents, takings or profits of a business or prevent persons from entering the property, and
- pay amounts owing to you under the initial order.
Any person affected by the sequestration order can apply to the Court for procedural orders.
What is receivership?
The Court can appoint a person as receiver of the payer’s income or property. The receiver is then entitled to:
- receive any income due to the payer from that property, and
- pay amounts owing to you under the initial order.
It does not give the receiver the power to sell the property. Any person affected by the receivership order can apply to the Court for procedural orders.
How do you obtain the Courts forms?
The Courts have different application forms and different requirements associated with filing different enforcement applications. To obtain the forms for any of the enforcement applications in either the Federal Magistrates Court or Family Court, go to the 'Forms' section above, call 1300 352 000 or visit a family law registry near you.