My ex and I have final Family Law property orders, but he is not complying. What can be done?

KEY TAKE-OUTS

• Section 106A of the Family Law Act authorizes the Federal Circuit and Family Court of Australia (FCFCOA) to appoint an officer of the court to execute a deed or document in the name of the person who is refusing to sign such a document.
• An Application for Enforcement can be filed with the Federal Circuit and Family Court of Australia requiring further orders for a non-complying party to do all things necessary to give effect to the Family Law property orders
• The parties may be permitted to make an application to set aside or vary the final Family Law property orders if they satisfy certain requirements pursuant to Section 79A (or Section 90SN for de facto matters) of the Family Law Act.

You have received final property court orders made by the Federal Circuit and Family Court of Australia, however your ex-partner is failing to comply with the Orders which is causing difficulties in giving effect to the orders. What can you do?

There are a number of options you can take if your partner is breaching Family Law property orders.

Enforcing Family Law property orders

Option 1 – Section 106A

If your Family Law property orders contain reference to orders allowing the Court to appoint an officer of the court or other person to execute a particular document that your ex-partner is failing to sign to give effect to the Orders, then you can write to the Court with a number of documents to ask them to enforce the order pursuant to Section 106A and sign any documents that your ex-partner is failing to sign to give effect to the order. An example of this is where you have orders allowing for the sale of the former matrimonial home, and the property has been sold but your ex-partner refuses to sign a discharge of mortgage document. If you have a Section 106A order in your final orders, and your ex-partner continues to refuse to sign the discharge of mortgage, then you can write to the Court and ask them to appoint an officer of the Court to sign the discharge of mortgage on behalf of your ex-partner. This will allow the settlement to proceed.

The documents you require if you are seeking to move forward with this option are:

• The original document that is required to be signed by a Registrar of the Court.
• An Affidavit addressing the attempts made to obtain your ex-partners signature on the required documents, and the facts relied upon to show their refusal to sign the required documents.
• A covering letter indicating the basis for your request and the urgency.

If you do not have a Section 106A order within your Family Law property orders but now seek to incorporate an order, you can do so by filing an Application in a Proceeding as well as the above documents, requesting that the order be made.

Option 2 – Enforcement proceedings

If there is a provision made in your Family Law property orders for your ex-partner to pay you a sum of money, but they have not paid, you can file an Enforcement Application requiring the Payer to:

• Identify the total amount owing
• Order the total amount owing be paid in full or by instalments
• Order enforcement of the obligation
• Prevent the disposal of property or wasting of assets by the paper and/or
• Make an order for costs.

Section 79A (or Section 90SN for de factos) Application to vary or set aside final Family Law property orders

The Federal Circuit and Family Court of Australia has the power to vary or set aside final property orders following an Application to do so, provided that they can be satisfied that one of the following has occurred:

• There has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including a failure to disclose relevant information), the giving of false evidence or any other circumstance;
• In the circumstances that have arisen since the order was made, it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out;
• A person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is fair to vary the order or to set the order aside and make another order in substitution;
• Circumstances of an exception nature have arisen relating to the care, welfare and development of a child of the marriage, where the child or the person who has caring responsibility for the child will suffer hardship if the court does not vary or set aside the order;
• A proceeds of crime order has been made.

If one of the above can be proven, the Court has the discretion to vary or set aside the existing Family Law property orders.

The Applicant in the Application to vary or set aside final Family Law property orders bears the onus of satisfying the Court that the orders should be varied or set aside.

ABOUT LUISA GAETANI:

Luisa is a Partner at Coutts Lawyers & Conveyancers and head of our Family and Criminal Law divisions. Since being admitted in 2014, Luisa has practiced solely in the areas of criminal and family law. It is her sensitive yet pragmatic approach that has allowed her to develop a strong rapport and build trusting relationships with her clients. Should a client’s matter proceed to court, Luisa has the skillset and experience to assist her clients through this process and where required, will draw upon her network of barristers to further benefit her client’s outcomes.