Family Law Property Order Enforcement: Recent Consideration

Introduction

It is unwise to just ignore an Order made in a Family Law proceeding which binds you. If an Order has been made with which a party does not agree, if there are sufficient grounds, there may be an option to appeal the Order to the authority of a superior Court. You must ensure however that you comply with strict requirements relating to appeals, including the time for making an appeal. However, simply ignoring the Order can result very unfavourably for the defaulting party.

Jurisdiction

Orders can be enforced in the Family Court of Australia or the Federal Circuit Court of Australia. The Family Court deals with more complicated matters, including those where there are more than two parties, valuations of complex interests in trusts or corporate structures, or complex issues concerning superannuation, such as valuations or matters involving legal principles.

Recent Case Law

In the recent case of Kerrigan & Nott (No.2) [2017] FCCA 2147 (28 August 2017), Judge Riley of the Federal Circuit Court of Australia in Melbourne made a family law property order that within 7 days an officer of the Victorian Police or other enforcement officer evict the Respondent from the subject property by force if necessary and that the Applicant have sole power to effect the sale of the property. Additionally, the Court ordered that the Respondent pay the Applicants’ legal fees and costs associated to bring the matter to Court.

In that case, the parties had previously appeared before the Court and a family law property order was made on 12 April 2017 which provided, amongst other things, for the sale of the real property with the proceeds of the sale to be divided in proportions of 55% to the Respondent wife and 45% to the Applicant husband. The wife had been in possession of and resided in the property since the parties had separated a significant time ago.
Unfortunately, the Respondent wife did not co-operate with the family law property order that required the sale of the real property despite numerous reasonable requests and proposals made by the Applicant husband. The husband was forced to file an enforcement application with the Court which sought an order that a warrant of possession be issued which provided him to take control of the property in order to progress the sale and disbursement of funds to the parties.

The Respondent wife argued that if the property were sold that she would then have no place to reside. The Court identified that upon sale of the property and payment of liabilities the wife will be in receipt of over $300,000 and with that she could sufficiently re-establish her residence at an alternate location.

Court Analysis
The Judge considered it entirely appropriate for a warrant of possession be issued. This was on the basis that the wife did not appeal against the final family law property order made on 12 April 2017 and there was no reason to consider that anything other than enforcement of those orders should be effected.

With respect to the Respondent wife’s failure to comply with the family law property order, together with the Applicant husband’s repeated reasonable proposals and the necessity for him to bring the before the Court to seek the wife’s compliance – the husband sought that the wife be responsible for payment of the legal fees associated to the Court application.

In accordance with the relevant provisions of the Family Law Act 1975 the Court considered various matters with respect to the husband’s application for the wife to pay his costs including:
• The financial circumstances of each of the parties to the proceedings;
• whether either party is in receipt of legal aid;
• the conduct of the parties to the proceedings;
• whether any party to the proceedings has been wholly unsuccessful;
• whether either party to the proceedings has made an offer in writing to settle the proceedings; and
• any other matter t considered relevant.

Orders

Taking into account all of the circumstances of the case, Judge Riley considered it appropriate to order the wife to pay the husband’s costs of the enforcement application to be taken from the wife’s proceeds of the sale of the property.

Leave a Reply