HOMEFamily Law Courts: Court Orders
Court Orders
What are court orders?
Court orders are the way the decisions or judgments of judicial officers are described. They can include:
1 an order made after a hearing by a judicial officer, or
2 an order made after parties who have reached their own agreement have applied to a court for consent orders. Consent orders, if they become a formal court order, have the same status as if the order had been made after a hearing by a judicial officer.
In general terms, orders in family law can include a decree, a decision, a declaration and a judgment.
When an order is made, each person bound by the order must follow it.
When can you apply for orders in the courts?
Applying to the court for orders should be a last resort and only considered after all genuine efforts to resolve the matter, such as community-based dispute resolution have failed. The exception is consent orders.
The requirements for what you must do before you apply to a court depend on whether your disagreement is about parenting or property and financial issues.
Applying for orders in family law
If you are considering applying for parenting orders, you can read more about what the orders may deal with and how you apply in the Parenting section of this website.
If you are considering applying for financial orders, you can read more about what the orders may deal with and how you apply in the Property & Finance section of this website.
If you have reached an agreement you can file consent orders in the Family Court. A consent order is a written agreement that is approved by a court and can cover parenting arrangements for children as well as financial arrangements such as property and maintenance.
How do I choose which court to file my application in?
Applications in family law matters can be filed in the Family Court of Australia or the Federal Circuit Court of Australia.
How do I access my court orders if they are made?
If any orders are made by the Court, once finalised they will be signed and sealed electronically and available for you to download from the Commonwealth Courts Portal (www.comcourts.gov.au).
Complying with financial orders
In a financial order, a court can order a person to do any of the following:
1 pay money to another person by a certain time
2 transfer or sell property,
3 sign documents.
When a financial order is made, each person bound by the order must follow it.
If a person has refused to obey an order about property or financial support made under the Family Law Act 1975 , your options include:
1 attend dispute resolution
2 get legal advice, and
3 applying to the court for an enforcement order.
When would you apply for enforcement of orders?
Courts do not automatically enforce family law orders, so if you cannot reach an agreement, you may consider applying to a court for orders. You have to tell the Court what the problem is in an application. The Court decides if an order is needed to enforce the existing order. Below are some examples of what you can do if you cannot resolve the issue with your former partner.
You can apply to the Federal Circuit Court. If you have current proceedings in the Family Court, you should apply to the Family Court.
What is the law on enforcement of orders?
The law on enforcement of orders is complicated. You should get legal advice before starting any proceedings to enforce a court order.
The process in the Federal Circuit Court is set out in Part 25B of the Federal Circuit Court Rules 2001 .
What if a person refuses to sign the orders?
The existing orders may provide for the document to be signed on behalf of the person refusing to sign (defaulting person) by an officer of the Court that made the order. If it does, you will need to notify the Court that made the original order to advise that the person has refused to sign the document/s and ask for the relevant officer to sign the document/s. An affidavit is usually required stating the facts. If the order was made by a state or territory court, you generally should contact the registry of that court.
If the orders do not provide for this, you can seek an order under section 106A of the Family Law Act, asking for the original court to appoint a person, usually the Registry Manager of the Court, to sign the document/s in the name of the defaulting party.
How do you seek an order?
You can apply to the Court most appropriate for your case.
The Family Court of Australia and the Federal Circuit Court of Australia are separate independent courts but share jurisdiction in all family law matters and you can apply to either court.
The Family Court deals with more complex matters. These may include, for example if the financial issues in your case involve multiple parties, valuation of complex interests in trust or corporate structures including minority interests, or complex issues concerning superannuation (for example valuation or matters of legal principle).
All other applications should be filed in the Federal Circuit Court. The Federal Circuit Court deals with less complex matters that are likely to be decided quickly.
What is the enforcement process to recover money in Family Law?
1. Obtaining information about the payer
If you are seeking to enforce the order, you may choose to first obtain information about the financial circumstances of the payer (person who has not paid the money). This can be done by one of the following:
1 giving the payer written notice to provide a Financial Statement within 14 days
2 applying to the Court for an order for the payer to disclose information or produce copies of documents relevant to the payer's financial affairs.
Once you have sufficient information you can then apply to the court.
2. Apply to the court for one of the enforcement following processes
Enforcement Warrant
You can apply to the Court, without notice to the payer, for an enforcement warrant. The enforcement warrant enables the nominated enforcement officer to seize and sell property of the payer to enforce the warrant.
To apply for an enforcement warrant, you need to file:
1 an enforcement warrant, and
2 an Affidavit in support (stating the facts to support your application).
See Federal Circuit Court Rules 25B.12 and 25B.22 about the information you should include in the affidavit.
Third Party Debt Notice
You can apply to the Court, without notice to the payer or the relevant third party debtor (for example, an employer of the payer), to issue a Third Party Debt Notice. This notice requires a person or organisation (the third party) who it is alleged owes money to the debtor to pay that money to you rather than the debtor (for example, it could be for be wages).
To apply for a Third Party Debt Notice, you need to file:
1 a Third Party Debt Notice, and
2 an Affidavit in support (stating the facts to support your application).
See Federal Circuit Court Rules 25B.12 and 25B.22 about the information you should include in the affidavit.
To serve the Third Party Debt Notice:
If the Court issues a Third Party Debt Notice, you must serve the sealed document on the third party debtor and the payer. The third party debtor must either comply with the notice or may apply to the Court to dispute the liability or seek procedural orders.
Enforcement hearing
You may apply to the Court for an order that the payer attends an enforcement hearing. For more information see the fact sheet Enforcement Hearings. At the enforcement hearing the Court may make orders to enforce the original order including:
1 sequestration of property,
2 receivership. or
3 other appropriate order/s.
Sequestration of property
The Court can order a property to be temporarily placed in the hands of a sequestrator. The sequestrator can:
1 collect rents, takings or profits of a business or prevent persons from entering the property, and
pay amounts owing to you under the initial order.
2 Any person affected by the sequestration order can apply to the Court for procedural orders.
What is receivership?
The Court can appoint a person as receiver of the payer’s income or property. The receiver is then entitled to:
1 receive any income due to the payer from that property, and
2 pay amounts owing to you under the initial order.
It does not give the receiver the power to sell the property. Any person affected by the receivership order can apply to the Court for procedural orders.
Complying with orders about children
When a parenting order is made, each person affected by the order must follow it. If the other person has not followed a parenting order, the following options are available:
1 attend dispute resolution
2 getting legal advice, and
3 apply to the court for orders.
How is a parenting order contravened (breached)?
A person breaches a parenting order, which has not been altered by a parenting plan, when they:
1 intentionally fail to comply with the order, or
2 makes no reasonable attempt to comply with the order, or
3 intentionally prevents compliance with the order by a person who is bound by it, or
4 aids or abets a contravention of the order by a person who is bound by it.
If a court decides that a person has failed to comply with an order, it will consider whether the person had a reasonable excuse for breaching the order.
What happens if a parenting order is breached?
A court can only penalise someone for failing to comply with a parenting order, which has not been altered by a parenting plan, if another person files an application alleging the person did not comply with the order.
If you breach a parenting order and you cannot be found, the court may make a location order. This order requires other people or organisations, including government departments; to give any information they have about where you and the child may be located.
If you breach a parenting order by failing to return the child as required, the court may make a recovery order.
How to file a breach of a parenting order?
To apply to the court following a breach of a parenting order, you will need to file:
1 Contravention Application (this application cannot be eFiled through the Commonwealth Courts Portal.
2 supporting Affidavit, and/or
3 a certificate from a registered family dispute resolution practitioner or Affidavit – non filing of family dispute resolution certificate
Do I need to attend court if I file a breach of a parenting order?
If you are the person alleged to have breached a parenting order and do not attend the court hearing, orders may be made in your absence, including an order for your arrest. You can attend in person or ask a lawyer to represent you.
