The powers of the Court to enforce Costs Orders

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The powers of the Court to enforce Costs Orders

In our previous article we spoke of costs in the Family Courts and how a Judge will be satisfied as to when your former partner has to pay the other’s legal costs. This article will explain how you apply to the Court to have such a costs order or any other financial order enforced to make your former partner pay.

When the orders are made by a Court be it a costs order, a private agreement you have made with your partner, or final orders after a trial, the Court will not automatically enforce those orders.  However, if the person who is ordered to do something such as transfer you property, sign a document, or pay you a certain amount of money does not comply with those orders, there are processes to force someone to comply.

Such enforcement options include an Enforcement Warrant, Third Party Debt Notice, or even Sequestration of property.  In cases where your former spouse will not sign a document you will find that it is usual practice that such orders include an order that provides for a court officer (usually a Registrar) to sign on that person’s behalf.

However, in cases involving a payment of money much of the enforcement processes are often decided in an Enforcement hearing.  This hearing involving the payee (person who is owed the money) and payer (person who owes the money) before a Judge in Family Court or Federal Circuit Court.

To start such a hearing you need to show an obligation to pay an obligation to pay money (usually by showing the orders the person is not complying with) and file two documents:-

  • An Application in a Case; and
  • An Affidavit.

You must also serve those documents and serve the payer with a list of documents that you want them to produce at the hearing.

At the hearing, the payer will be asked questions as to why they have not paid, their income, and if they have sold property recently.  If you are successful at such a hearing a number of things can be ordered by the Court:

  1. An Enforcement Warrant can be ordered allowing the Court to seize and sell a person’s property in order to pay that person’s debt to you.  An appointed marshal/officer will then enforce that Warrant;
  2. A Third Party Debt Notice can be ordered which directs a third party to pay you rather than the payer.  This is usually ordered against the payer’s employer who will then deduct wages from the payer in order to pay you back.
  3. Sequestration of Property can be ordered which temporarily puts that person’s property in the hand of a Sequestrator who can take control of that person’s assets and pay you back.

Enforcing orders of the Court is a complicated process and you should seek legal advice from a Family Lawyer.  Cal our Specialist Family Law Team on (02) 4324 7699 for a free confidential chat on the phone.