The Family Law Act 1975 (Cth) (the FLA) provides several enforcement mechanisms to enforce orders made under the Act. These mechanisms aim to ensure that the terms of orders made by the court are complied with.
The enforcement mechanisms available under the FLA include:
- warrant of arrest,
- warrant of execution,
- order of possession,
- order of sequestration, and so on.
The Sections relating to these orders are 109A and 109B of the Act, which this article will discuss.
Section 109: Inter-State enforcement of Child-bearing Expenses Order
Section 109 of the Family Law Act 1975 provides for the inter-state enforcement of FLA orders relating to child-bearing expenses. A child-bearing expenses order is an order made by a court in one State or Territory of Australia that requires a person to pay money to another person in relation to the maintenance of a child.
Moreover, this section applies to section 67D orders such as:
- order payment of a lump sum, whether in one amount or by instalments;
- order payment of a weekly, monthly, or other periodic amount;
- order the payment of an amount to be paid wholly or partly as the court specifies;
- order that any necessary instrument be signed, that any necessary title documents be produced, and that any other things be done that are needed for an order to be carried out or to ensure that it will be carried out; and
- order that payment be made to a specified person or public authority or into court.
Section 109 also stipulates that the regulations may make provisions for the enforcement of orders in a State or Territory by a court having jurisdiction under this Act to which this section applies made by a court in another State or Territory.
Section 109A: Rules of Court relating to enforcement
This section lays out the power of Judges of the Federal Circuit and Family Court of Australia (Division 1) to make Rules of Court in relation to its enforcement of the following orders and legislations:
- an order under the FLA affecting children
- the Child Support (Registration and Collection) Act 1988
- the Child Support (Assessment) Act 1989
On What Specific Matters Shall the Court Issue Such Orders?
The Section 109A enumerates these matters:
- Requiring a person to do any one or more of the following:
- to attend before a court or Registrar and answer questions or produce documents;
- to deliver a document or article to or to a person specified by a court or Registrar;
- to transfer the ownership of the specified property to another person;
- to give another person possession, including exclusive possession, of specified property;
- to deliver a specified chattel to another person;
- Prescribing the practice and procedure to be followed for a hearing before a court or Registrar when answering questions or producing the required documents
- Actions under the Rules of Court such as:
- the issuance of an arrest warrant to the person;
- the issuance of an execution warrant against the property of the;
- an order authorising the taking of possession of property of the person;
- an order for the sequestration, and if necessary, the sale, of property of the person;
- an order for the attachment, by a garnishment or attachment of earnings, of debts owed to the person;
- the appointment of a receiver of property of the person.
- taking any one or more of the above mentioned actions with regard to a person who:
- fails to pay the amount of a fine imposed on the Act;
- fails to pay an amount payable under a bond entered into under the Act;
- fails to pay under section 66L an amount of maintenance for a person over the age of 18 years; or
- fails to pay an amount payable under a registered maintenance liability under the Child Support (Registration and Collection) Act 1988 or the Child Support (Assessment) Act 1989; or
- delegating to a Registrar all or any of the powers conferred on a court under Rules of Court made under this section.
Section 109AA and 109B: Rules of Court relating to enforcement–Federal Circuit and Family Court of Australia (Division 1 and 2)
Section 109AA and 109B expressly state that Section 109A applies the same way to make Rules of Court under Chapter 3 of the Federal Circuit and Family Court of Australia Act 2021 as it does under Section 123.
Furthermore, it specifies that the Federal Circuit and Family Court of Australia (Division 1 or 2) is the court that is meant by “court” in Section 109A. Also, the “Registrar” referred to in the same section is the Chief Executive Officer or a Senior Registrar of the Court.
Court’s Deciding Factors
The court will consider a number of factors when deciding whether to make an order for enforcement, including:
- The nature of the order.
- The reasons for non-compliance of the order.
- The financial circumstances of the parties.
- The impact of enforcement on the parties and their children.
If the court makes an order for enforcement, the order will specify the enforcement mechanism used. The enforcement mechanism will depend on the nature of the order and the parties’ financial circumstances. If you seek to enforce an order made under the FLA, contact the relevant court for further information.
Tips for Understanding Enforcement of FLA Orders
Here are some tips for understanding enforcement orders under the FLA:
- Be familiar with the terms of the order that you are seeking to enforce. This will help you understand what the order requires and the enforcement mechanisms.
- Gather evidence of the other party’s failure to comply with the order. The evidence could include documents, photographs, or witness statements.
- Consider the factors that the court will consider when deciding whether to make an order for enforcement. These factors include the nature of the order, the reasons for non-compliance, the financial circumstances of the parties, and the impact of enforcement on the parties and their children.
Seeking Legal Assistance in Enforcement of FLA Orders
If you are seeking legal assistance in the enforcement of FLA orders in Australia, it is essential to seek legal advice from a lawyer experienced in family law. A lawyer can help you to understand your rights and options and to take the necessary steps to enforce your order.
Here are some additional tips for getting legal help with the enforcement of FLA orders in Australia:
- Choose an experienced lawyer in family law. Choosing a lawyer who understands the law and the process for enforcing FLA orders is crucial.
- Ask about the lawyer’s fees. Legal fees can vary, so asking about the lawyer’s fees before you start working with them is crucial.
- Be clear about your expectations. Before you start working with a lawyer, it is vital to be clear about your expectations. What do you hope to achieve by enforcing your order? What are your concerns?
- Communicate with your lawyer. It is essential to communicate with your lawyer throughout the process of enforcing your order. This will help ensure your case progresses smoothly and they constantly inform you of any developments.
Feel free to share your enquiries with our family lawyers at JB Solicitors. We can advise you on the available enforcement mechanisms, represent you in court, and ensure the enforcement of FLA orders.
Contact us today.