Enforcement of Court Orders and Judgments

What happens if the other party is supposed to pay me money, but they don’t? Or what happens if the other party is supposed to transfer an asset to me, but they don’t?

Whether parties reach an agreement under the Family Law Act 1975 for alteration of property interests (i.e., consent orders or a Financial Agreement), or a Judge hands down a judgment, and one party is required to make a payment to the other party, or transfer an asset to the other party, and that doesn’t happen, the party receiving the money or asset can go down the road of enforcing the orders.

Even if there is no interest required to be paid in the orders of the Financial Agreement, interest applies to a defaulted payment at the rate of 6% above the RBA’s cash rate.

There are four options for enforcing the other party to pay money under an order made by the Court. Those options are:

1. An order for seizure and sale of real or personal property, including under an Enforcement Warrant;
2. An order for the attachment of earnings and debts, including under a Third Party Debt Notice;
3. An order for sequestration of property; or
4. An order appointing a receiver.

The Court has the power to make an enforcement order for enforcement of an obligation to pay money, or in aid of the enforcement of an obligation.

To make an application to the Court to enforce orders, you must file an Application – Enforcement, and an Affidavit with the Court.

The payer will be required to disclose the nature of their financial circumstances to the Court, to assist in determining the most appropriate method of enforcement. Both parties will be required to attend an Enforcement Hearing.

If the payer fails to attend the Enforcement Hearing, and does not comply with serving a Financial Statement and producing documents related to their financial circumstances, the Court may issue a warrant for the arrest of the payer.

A payee can request the Court to issue an Enforcement Warrant. The Enforcement Warrant is then given to an Enforcement Officer to enforce. The Warrant remains in force for a period of twelve months from the date of issue.

Seizure and Sale of Real Property

At an Enforcement Hearing, you can obtain an Enforcement Warrant for the seizure of real property to be sold to fulfill an obligation for payment under Orders. Once the payer has paid the outstanding amount in full, it is the obligation of the payee to give notice to the enforcement officer of the payment, and for the officer to then release any seized property to the payer.

Third Party Debt Notice

A payee may, without notice to the payer or third party debtor, ask the Court to issue a Third Party Debt Notice requiring the payment to the payee of any money owed. This includes to have a person’s wages garnisheed. A Third Party Debt Notice comes into force at the end of seven days after the order is served on the third party debtor.

It’s important to note that there is a protected amount that cannot be touched when wages are garnisheed. The employer must ensure that the deduction does not go under the protected rate.

Enforcement of obligations other than an obligation to pay money

A person may apply, without notice to the respondent, for any of the following: a. An order requiring a person to sign documents under section 106A of the Family Law Act; b. An order to enforce possession of real property; c. An order for the transfer or delivery of property.

Warrant for possession of real property

An order for the possession of real property may be enforced by a warrant for possession only if the respondent has had at least 7 days notice of the order to be enforced before the warrant is issued. A court may issue a warrant for possession authorising an enforcement officer to enter the real property described in the warrant and give possession of the real property to the person entitled to possession.

Warrant for delivery

A person entitled under an order for the delivery of personal property specified in the order may apply for that order to be enforced by a warrant authorising an enforcement officer to seize the property and deliver it to the person who is entitled to it under the order.

Need help enforcing Orders?

The information contained in this article is general in nature, and does not take into account the circumstances of your situation. Please reach out to one of our lawyers for a consultation to discuss the specific obligations that have been defaulted on and see how to best advance your case.