Notifying the Court about family violence and child abuse

If you have a family violence order, you must tell the Federal Circuit and Family Court of Australia (the Court) about the order.

The Notice of child abuse, family violence or risk is a mandatory form for any person who files an Initiating Application, Application for Consent Orders or Response in the Court seeking parenting orders. The Notice of child abuse, family violence or risk is the way that you notify the Court of any allegations of family violence, child abuse or risk, in parenting proceedings.

See How the Court considers safety and risk for more information.

Family violence orders

A family violence order is an order made under a state or territory law to protect a person from family violence. The Court does not make family violence orders.

Family violence orders may affect orders made by the Court, especially parenting orders about children spending time with a parent or another person. For more information about family violence orders see, Family violence orders.

Risk assessment

The Court is often assisted in children’s cases by expert evidence about risk, medical and other health records, and forensic investigations. These can include:

• family reports and memoranda prepared by Court Children’s Service or external exports
• psychiatric or psychological assessments
• psychosexual assessments, and
• drug and/or alcohol tests, including urine tests, blood tests and/or hair follicle tests.

In most cases, the costs of those services (other than those provided by Court Children’s Service) must be paid by the parties to the proceedings.

Lighthouse

The Court is committed to the protection of vulnerable parties and children in family law proceedings and is leading the way in helping families that have experienced family violence and other safety risks to navigate the family law system.

Lighthouse plays a central role in the Court’s response to cases which may involve risk relating to family violence, mental health, drug and alcohol misuse and child abuse and neglect, by shaping the allocation of resources and urgency given to such cases.

You will be invited to complete the risk screen when you file an Initiating Application or Response with the Court seeking orders relating to children, such as parenting only orders, or parenting and financial or property orders, in Adelaide, Brisbane, Cairns, Canberra, Dandenong, Darwin, Hobart, Launceston, Melbourne, Newcastle, Parramatta, Rockhampton, Sydney, Townsville and Wollongong.

For more information, see Lighthouse overview.

Staying safe at court

If you have any concerns about your safety while attending court, you must let the Court know. See Safety at court for more information about safety plans and what the Court can do.

Getting help and support

Family Advocacy and Support Service

The Family Advocacy and Support Service (FASS) is an integrated duty lawyer and social worker service available for families affected by family violence or abuse. FASS is run by Legal Aid and is free. FASS may be able to help you with preparing documentation, organising a referral to a service and helping with court proceedings.

Visit https://familyviolencelaw.gov.au/fass/ to find the contact details of FASS in your state or territory.

There are a number of other organisations that also provide advice and support. See Family Violence: Get help and support.

If you are in immediate danger call 000.

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

You must do everything a financial or property 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:

• seek legal advice
• attend dispute resolution, and/or
• apply to the Court.

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 or property orders

The law on enforcement is complicated. You should get legal advice before asking the Court to enforce a financial or property 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 or property 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 – Family law and child support 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 or property 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:

• an Application in a Proceeding setting out the orders you are asking the Court to make, and
• an Affidavit – Family law and child support which complies with rule 11.06 of the Family Law Rules 2021.

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:

• a completed Enforcement Warrant, and
• an Affidavit– Family law and child support which complies with rules 11.06 and 11.16(2) of the Family Law Rules 2021.

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 be 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:

• a completed Third Party Debt Notice, and
• an Affidavit – Family law and child support which complies with rules 11.06 and 11.34(2) of the Family Law Rules 2021.

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:

• an Application – Enforcement, and
• an Affidavit – Family law and child support which complies with rules 11.06 and 11.44(2) of the Family Law Rules 2021.

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:

• an Application – Enforcement, and
• an Affidavit – Family law and child support which complies with rules 11.06 and 11.48(2) of the Family Law Rules 2021.

More information

For more information, see the publication:

• Enforcement Hearings

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

If you and your former partner are able to agree on arrangements for your finances and property, you can formalise these arrangements outside of court by entering into a Financial Agreement.

What is a Financial Agreement?

A Financial Agreement is a contract between two or more parties made under Part VIIIA (for marriages) or Division 4 of Part VIIIAB (for de facto relationships) of the Family Law Act 1975.

A Financial Agreement, if it binding, ousts the Court’s jurisdiction in relation to financial or property proceedings between the parties generally, or in relation to specific issues. In other words, a Financial Agreement, if prepared and entered into properly, can be a way to ‘contract out’ of court proceedings.

Does a Financial Agreement have to deal with everything?

A Financial Agreement can ‘cover the field’ – it can address all aspects of the financial relationship between the parties.

However, a Financial Agreement can also deal with only some issues, such as spousal or de facto maintenance.

When can we enter into a Financial Agreement?

Marriage

You can enter into a Financial Agreement before the marriage (see section 90B), during the marriage (see section 90C), or after the marriage (see section 90D).

It is mandatory to get independent legal advice before entering into a Financial Agreement.

De facto relationship

You can enter into a Financial Agreement before the de facto relationship (see section 90UB), during the de facto relationship (see section 90UC), or after the de facto relationship (see section 90UD).

It is mandatory to get independent legal advice before entering into a Financial Agreement.

Is my Financial Agreement binding?

To be binding, a Financial Agreement must meet certain technical requirements, which are set out in sections 90G (for Financial Agreements about marriages) and 90UJ (for Financial Agreements about de facto relationships) of the Family Law Act 1975.

The law about Financial Agreements is very complex. If you are a party to a Financial Agreement (or a purported Financial Agreement) which may come into effect, you should seek legal help.

Can the Court set aside a Financial Agreement?

The Court has power to set aside Financial Agreements in some circumstances, which are set out in sections 90K (for Financial Agreements about marriages), and 90UM (for Financial Agreements about de facto relationships) of the Family Law Act 1975.

The law about Financial Agreements is very complex. If you are a party to a Financial Agreement (or a purported Financial Agreement) which you think should be set aside, you should seek legal advice.

Mandatory legal advice

Each party to a Financial Agreement must be provided with independent legal advice about prescribed matters by an Australian legal practitioner before entering into the Financial Agreement.

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

For information about other options if you agree about financial arrangements see We have agreed.

More information

The Attorney-General's Department guide Property and Financial Agreements and Consent Orders – What You Need To Know, provides information to separating couples about the options for resolving property arrangements, from an informal agreement through to filing consent orders with the Court and litigating the matter in court.