A party may be entitled to receive spousal maintenance, child support, child maintenance or property by way of a lump sum payment, periodic payment or transfer of property, pursuant to a child support agreement, an assessment of child support, spousal maintenance or property orders or a binding financial agreement. The other party however may not be willing or able to make that payment or transfer that property. In these circumstances, a party may apply to the family court to enforce a child support agreement or assessment, spousal maintenance or property orders or a binding financial agreement.
The family courts are able to assist a party by way of enforcement in relation to the following obligations:
- an obligation to pay money;
- an order for the sale and seizure of real estate or personal property;
- an order for the attachment of earnings and debts;
- an order for sequestration of property; and
- an order appointing a receiver or manager.
In some cases the payer may dispute the amount of money owed.
In addition to enforcing an order, the family courts can on application by a party also punish the non-compliant party for failure to comply with an order of the court.
The courts may impose fines or imprisonment for failure to comply with an order of the court.
In addition a party may be find themselves guilty of contempt of court for failing to comply with orders of the court and expose that person to further penalties by the court.
The family courts has large powers of enforcement. The powers of the court the general enforcement powers of the court include powers:
- to declare the total amount owing;
- to determine the amount owing must be paid in full or by instalments;
- prevent the dissipation or wasting of property;
- for costs;
- staying the enforcement of an application;
- requiring the payer to attend an enforcement hearing;
- requiring the payer to give further information;
- requiring a person to produce documents for inspection by the court; and
- to dismiss an application.
An application for enforcement of orders of the courts is made by filing an application in the case supported by an affidavit.
The appropriate method of enforcement will vary on a case by case base. It will depend on the terms of the order that has been beached and the steps that need to be taken to remedy the breach.
Requiring the payer to attend an enforcement hearing is a very useful tool to obtain information from the payer in relation the ability to make good an order of the court. If a party fails to attend a hearing in relation to enforcement, court has power to issue a warrant for their rest.
Another useful enforcement tool available, is the power of the family courts to order documents and instruments to be signed on behalf of a person. If an order under this Act has directed a person to execute a deed or instrument that person has refused or neglected to comply with the direction or, for any other reason, the court considers it necessary to exercise the powers of the court under this subsection the court may appoint an officer of the court or other person to execute the deed or instrument in the name of the person to whom the direction was given and to do all acts and things necessary to give validity and operation to the deed or instrument.
The family courts have significant enforcement powers when it comes to orders about children. If a party has breached a parenting order, that party is liable to fines and imprisonment.
If a party believes that the other party is breaching or intending to breach a parenting order, then they can file among other things a contravention application supported by an affidavit to prevent that person from committing the breach.
Because there are variety of methods for parties to use to enforce orders of the court and because the methods used will vary on a case by case basis depending on the nature of the breach and the orders being breached, enforcement is a somewhat technical area. Parties should obtain advice from an experienced family lawyer before embarking on enforcement.
The general rule is that in family law proceedings each party pays their own legal costs. However, in relation to enforcement proceedings, the court regularly departs from the general rule on costs. Often the costs will follow the event in enforcement proceedings. That is, if an applicant is successful, then they may be awarded their legal costs. If an applicant is unsuccessful, then they may be ordered to pay the other party’s legal costs.