An application to enforce an order can be made by anyone who is owed money under a Family Court or Federal Circuit Court order, agreement or child support liability. The procedures outlining enforcement proceedings are found in the following rules:
- Family Law Rules 2004 (Cth) – Rules 20.11 – 20.14; and
- Federal Circuit Court Rules 2001 (Cth) – rules 25B.17 – 25B.20
Obligation to pay money
An ‘obligation to pay money’ is defined as anyone who is required to pay money to another pursuant to any one of the following:
- Any order made under the Family Law Act 1975 (Cth), Child Support (Assessment) Act 1989 or the Child Support (Registration and Collections) Act 1988;
- A registered parenting plan;
- An award made in arbitration and registered under section 13H of the Family Law Act;
- A maintenance agreement approved under section 86(1) or section 87 of the Family Law Act;
- A financial agreement or termination agreement under Part VIIIA of the Act;
- A financial agreement or termination agreement under Part VIIIAB of the Act;
- An agreement varying or revoking an original agreement dealing with the maintenance of a child under section 66SA of the Family Law Act;
- An overseas maintenance order or agreement that, under the Family Law Regulations 1984, is enforceable in Australia;
- A liability to pay arrears under an order or agreement;
- A debt due to the Commonwealth under section 30 or section 67 of the Child support (Registration and Collection) Act;
- A child support liability;
- An order imposing a fine or the forfeiture of a bond; or
- Costs, including the costs of a conference.
An Enforcement Application is generally made by preparing and filing the following documents:
- Application in a case; and
- Affidavit in support of your Application in a case.
As a standard rule, you must serve these documents on the payer at least fourteen (14) days prior to the matter being heard by the court, along with a list of documents you want the payer to provide, and a copy of the Family Court Brochure on enforcement hearings.
The payer then has seven (7) days prior to the date of the hearing to prepare and filing a ‘Financial Statement’ (which can be obtained on the Family Court Website) and serve it on the payee.
On the date of the hearing, the payer must do the following:
- Produce the documents requested by the payee; and
- Satisfactorily answer all questions put to them about their failure to pay a debt.
Following the hearing, a court may choose to do one of the following:
- Make a finding as to the total debt required to be paid;
- Order that the amount be paid in full, or in instalments;
- Prevent the payer from disposing of any property;
- Stay the obligation to pay (that is, withdraw the payers’ obligation to repay the debt); and/or
- Make an order for costs.
It is an obligation for the payer to be completely frank in their answers and financial disclosure. Penalties apply, including potential criminal charges, if a payer fails to answer any questions put to them to the satisfaction on the Court.
How can we help?
We recommend that you seek legal advice prior to lodging an enforcement application to ensure that it is appropriate in the circumstances of your case. Please do not hesitate to contact the experienced team at JB Solicitors and we will be more than happy to assist you.