The Family Law Act 1975 sets out the rules on decree enforcement under the Act. Moreover, it provides procedures for resolving family law disputes, including divorce, property division, and child custody.
Decree enforcement under the FLA ensures that parties comply with the terms of a decree made by a court. This can include enforcing orders for child support, property settlement, or spousal maintenance. Furthermore, the Act also provides for a number of other enforcement mechanisms.
For instance, the appointment of a receiver to manage property or the appointment of a supervisor to oversee the payment of child support. This article will tackle Sections 105 to 107 of the Family Law Act. These Sections explain the rules on decree enforcement under the Act.
Section 105 and 106: Decree Enforcement and Maintenance Orders – More than 12 months in arrears
Any court having jurisdiction under this Act can enforce all decrees made under the Family Law Act 1975 (FLA). However, there is an exception. A court shall only entertain a proceeding under this Act to enforce a decree that another court makes if the decree is registered in the first-mentioned court under the regulations.
Nevertheless, this provision does not prohibit the court from making an order relating to the validity, enforceability, and effect of financial agreements and termination agreements under section 90KA or 90UN.
Is a Decree Under This Act Enforceable if the Person Bound By It Dies?
Yes. If a person bound by decree made under the FLA dies, the court may enforce the decree on terms and conditions it considers appropriate. The decree enforcement is in respect of liabilities that arose under the order before that person’s death against that person’s estate.
Under section 106 of the Act, a court must not require unique circumstances to justify executing a maintenance order simply because the maintenance payable under it is more than 12 months in arrears when deciding whether to make an order enforcing it.
Section 106A: Execution of Instruments by Court Order
Section 106A lays out the rules on the execution of instruments by order of the court:
Rule 1
The court may appoint a court officer. Or other person to execute the deed or instrument in the name of the directed party. The court will also order the officer to perform all required actions to validate and operate the deed or instrument.
This rule shall apply when:
- An order under this Act directs a person to execute a deed or instrument; and
- That person refuses or neglects to comply with the direction or, for any other reason, the court considers it necessary to exercise the powers of the court under this rule.
Rule 2
The court may appoint a court officer. Or other person to execute the deed or instrument in the name of the person required by the maintenance agreement. Such an officer executes the deed or instrument and performs all necessary actions to make it lawful and effective.
This rule shall take effect if:
- A provision of a maintenance agreement that has been registered under section 86 or approved by a court under section 87 requires a person to execute a deed or instrument; and
- The person fails to comply with that maintenance agreement provision. Or the court deems it necessary to exercise its powers under this section.
Rule 3
When a person appointed under this section to sign a deed or other legal document does so, it has the same force and validity as if the deed or document had been signed by the person who was ordered or required by a maintenance agreement to sign it.
Rule 4
The court can make any order that is fair about who should pay for the costs and expenses of making the deed or instrument and getting it signed.
Section 106B: Transactions to Defeat Claims
In relation to decree enforcement, the court may set aside or restrain the making of an instrument or disposition:
- by or on behalf of
- by direction or in the interest of a party
which is made or proposed to be made to defeat an existing or anticipated order in those proceedings or which, irrespective of intention, is likely to defeat any such order.
These are the instances in which the court may set aside or restrain such instrument or disposition:
- If a party to a marriage, or a party to a de facto relationship, is bankrupt.
- The bankruptcy trustee is a party to proceedings under this Act.
- If a party to a marriage, or a party to a de facto relationship, is a debtor subject to a personal insolvency agreement.
- The trustee of the agreement is a party to proceedings under this Act.
Other Rules Under This Section
- The court may order that any money or real or personal property dealt with by any instrument or disposition be taken in execution or charged with the payment of such sums for costs or maintenance as the court orders or that the proceeds of a sale be paid into court, to comply with its mandate.
- A bona fide purchaser or other interested party must have their interests taken into consideration, and the court must issue whatever orders are necessary to protect them.
- A party or a person acting in collusion with a party may need to pay the costs of any other party, a bona fide purchaser, or another person interested in and incidental to any such instrument or disposition and the setting aside or restraining of the instrument or disposition.
- In addition to the court’s powers under this section, it may exercise its general powers under sections 80 and 90SS.
Who Can Make an Application for an Order under this Section?
The provision stipulates that parties may make an application to the court for an order under this section by:
- a party to the proceedings; or
- a creditor of a party to the proceedings if the creditor may not be able to recover their debt if the court made the instrument or disposition; or
- any other person whose interests would be affected by the making of the instrument or disposition.
What “Disposition” and “Interest” Include
Under this section, the law states that a disposition includes “a sale or gift and the issue, grant, creation, transfer or cancellation of, or a variation of the rights attaching to, an interest in a company or a trust.
Additionally, it stipulates that:
- interest in a company includes:
- a share in or debenture (a medium-term investment) of the company
- an option over a share in or debenture of the company (whether the share or debenture is issued or not)
- interest in a trust includes:
- a beneficial interest in the trust
- the interest of a settlor in property subject to the trust
- a power of appointment under the trust
- a power to rescind or vary a provision of, or to rescind or vary the effect of the exercise of a power under the trust
- an interest that is conditional, contingent, or deferred
Section 107: People Not to Face Imprisonment for Failure to Comply with Certain Orders
Can a person who contravenes an order for the payment of money made in a matrimonial cause or de facto financial cause face imprisonment? Section 107 says that a person must not face imprisonment or otherwise placed in custody because of a contravention of such orders.
Legal Advice for Family Law Disputes
The Family Court has wide discretion when it comes to enforcing orders. This means that the Court can tailor the enforcement measures to the specific circumstances of each case. If you are facing a family law dispute, seeking legal advice as soon as possible is essential.
JB Solicitors has a team of experienced family lawyers who can explain your legal rights and options, help you understand the rules on decree enforcement under the FLA, represent you in court, negotiate with the other party, draft legal documents, and provide emotional support.
Contact us today.
