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Enforcement of Agreements / Orders

Sometimes, one party will not act in accordance with orders that have been made. When this occurs, an enforcement application is required.

The Court has the power to enforce orders:

  1. Regarding the payment of money.
  2. For an obligation to sign or execute a document.
  3. To entitle a person to real property.
  4. To entitle a person to personal property (such as furniture, artwork, jewellery, etc); and
  5. In relation to a parenting order.

A person seeking an enforcement, especially in relation to parenting orders, may need to consider if a more effective method of compliance would be the making of a contravention application. This is an application to let the Court know that an order has been breached. It is a different application to an enforcement application. We strongly recommend you seek qualified advice from a reputable team on which application best suits your situation.

If you’re making an enforcement application, it is important to specify:

  1. How much/what needs to be enforced.
  2. The order that has been breached.
  3. Who breached the order.
  4. Who is supposed to have the benefited from the order.
  5. What specifically you wish the Court to do (for instance, if the order is for the payment of money, how do you want the Court to order that payment) and;
  6. The source the other party has for meeting the enforced order (for example, does a property need to be sold to meet the requirement for the payment of funds or do the funds need to come in increments for their salary?).

It is not as straightforward as simply clarifying to the Court that an order has been breached. Rather, the Court needs to be satisfied that there is a means of recouping the funds. A person who receives an enforcement application is required to file a financial statement and attend the hearing set by the Court, ready to answer questions. They may also need to provide disclosure documents. Failure to do these things can constitute a crime, punishable by a fine paid to the Court.
If the Court is not satisfied, however, that the party against who the enforcement has been sought has the capacity to undertake what is required, they have the power to vary the orders. Consequently, you should also get clear advice about potential outcomes before making an application for an order to be enforced.
Our specialist team is experienced in both running and defending enforcement applications and will gladly assist to achieve the best outcome in your situation.