Enforcement Proceedings in the Federal Circuit and Family Court of Australia

Introduction

What can you do when a party to interim or final court orders fails to comply with the terms of those orders? 

An enforcement application is used to enforce an order, other than a parenting order, when a party or corporation has failed to pay money, transfer property, comply with financial obligations, or otherwise do something required by a final or interim order.

The pathway for enforcement of financial orders and obligations is set out in Part 11.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

When an Application May Be Appropriate

An application may be appropriate where there is a clear order or enforceable obligation and the other party has failed to comply.  Examples include failure to pay a property settlement amount, failure to meet a spousal maintenance obligation, or failure to comply with another financial order.

Documents Required

The applicant (or payee) must file an Application – Enforcement.  The Application – Enforcement should set out the orders that the court should make to bring about compliance with the existing order.

The applicant must file an Affidavit in support of the Application and attach a copy of orders sought be enforced.  The affidavit should set out the facts in relation to:

• the making of the order;
• the failure by the other party to comply with the order;
• the steps taken by the application to seek compliance before commencing proceedings;
• any other relevant facts the court should know about arising from the non-compliance including, for example, any costs or damages suffered by the applicant arising from the respondent’s failure to comply.

The applicant should ensure all forms are complete, signed where required, and supported by relevant evidence such as correspondence, payment records, bank statements, calculations, or previous notices seeking compliance.

Service on the Respondent

After filing, the enforcement application must be served on the respondent by personal service.  The applicant must also ensure the required Court brochure and accompanying material is served in the same way.  Evidence of service should then be prepared and filed so the Court can be satisfied that the respondent has been properly notified of the proceedings.

The Enforcement Hearing

Once filed, the matter will be listed before a Judicial Registrar for further directions.  If the matter has been properly prepared and served and is able to proceed, orders will be made to list the matter for hearing before an enforcement Registrar.

If an enforcement Hearing is requested, both parties are obligated to attend. 

At least 14 days before the date fixed for the enforcement hearing, the applicant must personally serve on the payer:

• the application
• the affidavit
• a list of documents that you want the payer to produce
• a written notice demanding the production of these documents, and
• a copy of the – enforcement hearings brochure issued by the Court;

If you are the respondent at least seven days before the enforcement hearing, you must:

• complete and file a Financial Statement, and
• serve it on the payee.

Possible Enforcement Orders

If the Court is satisfied that an enforceable obligation exists and has not been met, it may make orders designed to secure compliance. Depending on the circumstances, this may include:

• identify the total amount owing under an obligation to pay
• order that the total amount owing be paid in full or by instalments
• order enforcement of the obligation
• prevent the disposal of property or wasting of assets by the payer
• stay the enforcement of an obligation (including an enforcement order), and/or
• make orders for costs.

The appropriate order will depend on the nature of the original obligation, the evidence before the Court, and the respondent’s financial circumstances.

Conclusion

Filing an enforcement application requires careful preparation. Because enforcement proceedings can have significant consequences, parties should consider obtaining legal advice before filing to ensure the application is appropriate, complete, and supported by evidence.