Court orders made by the Federal Circuit and Family Court of Australia are legally binding and must be obeyed. When a party refuses or fails to comply, the court has a range of enforcement mechanisms available to compel compliance. Enforcement action can be taken in respect of parenting orders, property orders, financial maintenance orders, and other types of family law orders.
Enforcement of Parenting Orders
When parenting orders are not being followed, the court can make several types of enforcement orders:
- Recovery order: If a child has been taken or withheld in breach of a parenting order, the court can make a recovery order directing that the child be returned. Recovery orders authorise federal police, state police, or other prescribed persons to locate and recover the child.
- Location order: If a child's whereabouts are unknown, the court can order a person or agency (such as Centrelink or the passport office) to provide information to help locate the child.
- Passport order: The court can order that a child's passport be surrendered to prevent the child from being taken overseas, or place the child's name on the Family Law Watchlist maintained by the Australian Federal Police.
- Contravention orders: The court can impose sanctions for breach, ranging from make-up time with the child through to fines and imprisonment.
In urgent situations involving a child's safety, recovery orders can be sought on an emergency basis. If you believe a child has been taken or is at risk of being removed from the jurisdiction, seek legal advice immediately.
Enforcement of Property and Financial Orders
When a party fails to comply with property settlement or financial orders, enforcement mechanisms include:
- Enforcement warrant: The court can issue a warrant authorising the seizure and sale of property to satisfy a financial obligation
- Garnishee order: An order directing a third party (such as an employer or bank) to pay money owed to the non-complying party directly to the applicant
- Charging order: An order placing a charge over the non-complying party's property to secure the amount owed
- Sequestration order: An order appointing a sequestrator to take control of a party's property and apply it towards satisfying the court order
- Contempt proceedings: In serious cases of deliberate non-compliance, the court can find a person in contempt of court, which may result in a fine or imprisonment
The Enforcement Process
- Assessment of the breach: Your lawyer will review the orders and the nature of the non-compliance to determine the most appropriate enforcement mechanism.
- Demand for compliance: In many cases, a formal demand letter from your lawyer will prompt the other party to comply without the need for further court action.
- Filing an enforcement application: If the breach continues, an application is filed with the court seeking the appropriate enforcement orders, supported by an affidavit setting out the evidence of non-compliance.
- Court hearing: The court considers the evidence and makes enforcement orders as it sees fit. The non-complying party may be ordered to pay the applicant's legal costs.
Practical Considerations
Enforcement action should be proportionate to the breach. Not every failure to comply requires a court application. In some cases, the most effective approach is to negotiate a resolution or seek a variation of orders that addresses the underlying issue. At Reid+Alexander Lawyers, we assess each situation on its merits and recommend the enforcement strategy most likely to achieve a practical result.
"The court has robust enforcement powers, but the goal is always compliance, not punishment. We focus on achieving outcomes that work in practice, not just on paper."
If court orders are not being followed and you need to take enforcement action, contact us for clear, decisive legal advice.