Enforcement of property, maintenance and child support orders

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Once property, maintenance or child support orders are made, if your former partner or spouse does not comply with those orders, one course of action available is to seek enforcement of those orders. The purpose of an enforcement application is not to punish a party, but rather it is to facilitate a process by which a non-complying party is able to comply with the orders and assist in the implementation of Court orders.

When determining an enforcement application, the Court will consider various factors, including:

1. the facts or circumstances that have arisen since the date of the orders being made;

2. whether in all the circumstances it is inequitable to enforce the order;

3. the delay of the enforcing party in seeking enforcement of the orders; and

4. whether there has been compliance with the Rules of Court with respect to the procedural requirement of enforcement applications.

The types of orders that can be enforced include:

1. an obligation to pay money, including an obligation under a Financial Agreement and a Binding Child Support Agreement;

2. an obligation to sign a document; and

3. an order to receive real or personal property.

The types of orders that can be made in an enforcement application include:

1. stating the amount of money owing (including any interest) and when the amount is to be paid;

2. preventing a party from dealing or disposing with property;

3. requiring a party to attend an enforcement hearing to give evidence and provide documents;

4. the seizure and sale of real or personal property;

5. a garnishee order to direct a third party (e.g. a party’s employer) to repay debts against the earnings and debts of a party;

6. sequestration of property; and

7. the appointment of a receiver.

Enforcement applications require various procedural matters to be complied with before an application is filed. If these procedural requirements are not complied with, the Court may dismiss the application.  Accordingly, enforcement applications require careful consideration to ensure they are successful and achieve their purpose of enforcing and implementing Court orders where there has been a default. Pearson Emerson is well experienced in enforcement applications and can provide advice to you to seek appropriate enforcement orders and comply with the Rules of Court.

 Written by Brendan Kazmierczak, Lawyer