What is an enforcement order?
13 November 2023 · Read time: 5 minutes
An enforcement order is a court decree that compels a party to comply with an existing family court order.
It is typically sought when a party fails to fulfill their obligations under an existing order, such as failing to make child support payments, adhering to parenting arrangements, or returning a child to the other parent.
Penalties may be imposed for serious or repeated non-compliance, including fines or imprisonment.
Enforcement orders play an important role in ensuring that family court orders are upheld and the best interests of children are protected.
When is an Enforcement Order Necessary?
Enforcement orders are generally considered a last resort, pursued only after attempts to resolve the matter amicably have failed.
If a party repeatedly fails to comply with an order, an enforcement order may be necessary to protect the rights and well-being of the affected parties, particularly children.
Types of Enforcement Orders
There are various types of enforcement orders, each tailored to address specific situations and violations.
Some common enforcement orders include:
Recovery Orders
Recovery orders are a type of enforcement order specifically designed to address the recovery of a child who has been wrongfully removed or withheld from the parent entitled to possession.
These orders are often sought when a parent fails to return a child after a designated visitation period or when there is evidence of abduction or concealment.
The court may authorise law enforcement assistance to locate and return the child to the rightful parent, ensuring that the child's safety and well-being are protected.
Location Orders
Location orders are another crucial tool in enforcing family court orders when the whereabouts of a child or a non-compliant party cannot be determined.
These orders compel third parties, such as government agencies, institutions, or individuals with knowledge of the whereabouts, to provide accurate and timely information to the court.
This information can be instrumental in locating the child, enforcing parenting arrangements, or ensuring compliance with financial obligations.
Sequestration Orders
Sequestration orders are enforcement measures aimed at satisfying outstanding financial obligations under family court orders, particularly child support payments.
These orders empower the court to seize and sell property owned by the non-compliant party to the extent necessary to fulfil the unpaid obligations.
This may include forms of property that can be liquidated to satisfy the debt such as
- real estate
- vehicles
- valuable assets
- other.
Attachment Orders
Attachment orders are specifically designed to address non-compliance with financial obligations, such as child support payments.
These orders authorise the court to directly garnish the non-compliant party's wages or other income streams, ensuring that the funds are transferred directly to the entitled party.
This mechanism ensures that financial obligations are met even when the non-compliant party fails to make voluntary payments.
Penalties
In cases of serious or repeated non-compliance with family court orders, the court may impose penalties to reinforce the importance of adherence to the orders.
These penalties may include fines, which serve as financial deterrents, or even imprisonment in extreme cases.
Contempt of court proceedings may also be initiated, holding the non-compliant party accountable for their actions and emphasising the severity of their non-compliance.
Seeking Enforcement of Family Court Orders
If you are facing non-compliance with a family court order, it is essential to seek legal guidance promptly.
When a party in a property dispute refuses to comply with clear court orders to pay the other party a specified sum of money, the aggrieved party can seek an enforcement warrant for seizure and sale of the non-compliant party's property.
This application must be supported by an affidavit detailing the facts and circumstances of the debt owed to the applicant under the orders. Upon successful application, a bailiff will seize and sell the non-compliant party's property to recover the outstanding debt.
If the non-compliant party owes money, refuses to sign property transfer documents, or refuses to transfer possession of an asset, a less drastic approach is to apply for an enforcement hearing. The court has broad powers at an enforcement hearing, including issuing injunctions and ordering payment by installment.
Enforcing Parenting Orders
If a parent believes the other parent has violated a parenting order, they can file a contravention application with the court, typically after attempting mediation.
If the court finds the other parent has violated the order without a valid excuse, it may impose penalties.
The severity of the penalties depends on the nature and severity of the violation. One common penalty for a less severe, first-time violation is mandatory attendance at a post-separation parenting program. In extreme cases, the court may even impose a prison sentence, though this is a rare occurrence.
If a parent fails to return a child as required by an order, the court may issue a recovery order.
This order instructs the Marshal of the Court, the Australian Federal Police, and the police forces of each Australian state and territory to "recover" the child and return them to the other parent.
The Importance of Enforcement Orders
Enforcement orders provide a mechanism to address non-compliance, protect children's rights, and enforce financial obligations. By seeking enforcement when necessary, individuals can safeguard their rights and ensure that family court orders are respected.
