Finances and property: Compliance and enforcement

When a financial order is made, each person affected by the order must comply with (follow) the order.

You must do everything a financial order requires you to do, and you must take all reasonable steps to ensure that the order is put into effect, including doing things to enable the other party to comply. For example, if an order requires the other party to transfer the registration of a car to you, you need to sign the transfer form to enable that transfer to happen, even if the order does not expressly say that you have to sign the form.

The other party has not complied

If you allege that another person has contravened (breached) an order, you can:

Courts do not automatically enforce family law orders. You have to tell the Court what the problem is in an application, or using one of the processes set out below. The Court decides if an order is needed to enforce the existing order.

The law on enforcement of financial orders

The law on enforcement is complicated. You should get legal advice before asking the Court to enforce a financial order.

Part 11.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 sets out the rules which apply to the enforcement of financial orders.

What if a person refuses to sign a document required in the orders?

If a party refuses to sign a document which they are required to sign according to orders, you can ask the Court to make an order, under section 106A of the Family Law Act 1975, to appoint another person to sign the document on behalf of the defaulting party.

You usually need to file an Affidavit in which you state the relevant facts, which usually include:

  • what you say the defaulting party was required to do, with reference to the relevant order
  • what steps you took to facilitate the defaulting party’s compliance (for example, you may have provided to the defaulting party the document which they were required to sign), and
  • the defaulting party’s refusal and/or failure to sign the document.

Enforcement processes

The Court can make four categories of enforcement orders:

  • an order for seizure and sale of property – this is usually done under an Enforcement Warrant
  • an order for the attachments of earnings and debts – this is usually done under a Third Party Debt Notice
  • an order for sequestration of property, and/or
  • an order appointing a receiver.

Obtaining information about the payer

If you are seeking to enforce a financial order, you may want to first obtain information about the financial circumstances of the payer (person who has not paid the money). This information may assist you in deciding whether, and how, to seek the Court’s assistance to enforce the order.

You can require the payer to provide financial disclosure by doing one of the following:

  1. giving the payer written notice to provide a Financial Statement within 14 days
  2. applying to the Court for an order requiring the payer to:
    1. provide a Financial Statement within 14 days, and/or
    2. disclose information and/or produce documents relevant to the payer’s financial circumstances.

To apply to the Court for the payer to provide disclosure, you file:

Payer’s obligations

A payer who fails to comply with a written notice to provide a Financial Statement, or an order to disclose information or produce documents, commits an offence of strict liability, with a penalty of 50 penalty units.

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.

See Division 11.1.3 of the Family Law Rules 2021.

To apply to the Court for an Enforcement Warrant, you file:

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 or bank of the payer), to issue a Third Party Debt Notice. This notice requires a person or organisation (third party) who you allege owes money to the payer to pay that money to you rather than the payer.

For example, the third party may the payer’s employer, the debt they owe the payer may be the payer’s wages or salary.

See Division 11.1.4 of the Family Law Rules 2021.

To apply to the Court for a Third Party Debt Notice, you file:

If the Court issues a Third Party Debt Notice, you must serve on each of the third-party debtor and the payer:

  • a sealed copy of the Third Party Debt Notice, and
  • the brochure Third Party Debt Notices.

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.

See Division 11.1.5 of the Family Law Rules 2021.

To apply to the Court for an order for sequestration of property, you file:

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.

See Division 11.1.6 of the Family Law Rules 2021.

To apply to the Court for an order for the appointment of a receiver, you file:

More information

For more information, see the publications:

For information about applying to the Court, see How do I apply for property and financial orders?

Legal advice

You are not required to be represented by a lawyer, or to seek legal advice, before taking steps to enforce orders. However, family law is complex, and getting legal advice will help you to better understand your rights and responsibilities.

For information on how to get legal advice, see Legal Help.