Overview
After the Federal Circuit and Family Court of Australia (the Court) makes final orders in your proceeding, if a person does not comply with those orders, you can take further steps to ‘enforce the judgment’.
If a person has been ordered to pay you money, the money owed is a ‘judgment debt’.
Recovering a judgment debt may involve:
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seeking financial information about the person who owes you money
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having the Sheriff seize and sell some types of property that the person owns to satisfy the debt to you, or
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directing that some or all of the person’s earnings or income from a bank or other financial institution be paid to you.
You will need to use a state or territory court process to recover the judgment debt.
If a person has been ordered to do, or not to do, an act or thing (distinct from an order to pay an amount), but they have not complied, you may also be able to take steps to enforce that order.
Enforcing a judgment debt
You will have the same remedies for enforcing a judgment debt as exist in the supreme court of the state or territory in which the judgment is made. You will have to use the enforcement procedures of the relevant supreme court.
While the terminology may differ between states and territories, the following methods of enforcing a judgment debt are broadly available:
Examination notice
This document is served on the person who owes you money, requiring them to answer questions about their financial circumstances and provide copies of documents to you.
Examination order
If the person who owes you money does not provide sufficient answers or documents as specified in the examination notice, you can apply to the Court for an examination order directing the person to attend court for examination under oath as to their financial capacity to satisfy the judgment debt.
Writ / warrant for seizure and sale of property
The writ authorises and directs the Sheriff’s Office to go to the address of the person who owes you money, seize property owned by that person and sell it at auction to satisfy the judgment debt. This requires a court order.
Redirection / attachment / garnishee of debts or earnings / instalment order
This is an order from a court, directed to a third party (for example, a bank or employer), to have a certain amount of money taken from the person who owes you money and given to you to satisfy the debt to you. This kind of order will usually be served on either a bank (usually requesting money from a business account) or an employer (requesting part of an employee’s wage).
The order bypasses the judgment debtor, but it only helps if you know whom to serve the order on. Also, if there is no money in the account, or less than a certain amount, no money will be deducted. If the judgment debtor is an individual receiving Centrelink, it may be difficult to recover any substantial amount through this method.
Each method has its own procedural requirements, which can differ, depending on the state or territory where the judgment is being enforced.
The time limit for enforcing a judgment debt varies between the states and territories. In some jurisdictions, it is 6 years; in others it is 12 years.
The procedures and forms for each state and territory can be found on the relevant court’s website.
It may also be possible to commence bankruptcy proceedings (against an individual debtor, for debt equal to or exceeding $10,000) or serve a creditor’s statutory demand for payment of debt (against a company) to enforce a judgment debt. You will need to apply to a court to take these steps.
In deciding which enforcement method to pursue, consider:
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how long it will take to pursue enforcement, including recovery of the debt
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the cost involved in the particular enforcement method, taking into account court fees and other costs (such as when the Sheriff must execute a writ)
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the difficulty of the process
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the suitability of the method (consider the judgment debtor’s financial position and means),
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whether the judgment debtor is an individual, a company, or some other legal entity.
It is recommended that you seek legal advice before trying to enforce a judgment debt.
Enforcing an order to do, or not to do, an act or thing
If a person has been ordered to do, or not to do, an act or thing, such as transfer property or deliver goods, and they do not comply with the order, you may be able to apply to the Court for certain orders that would compel the action through arrest of the person (committal) or seizing of the property (sequestration).
You can also sometimes get an order from the Court that another person, appointed by the Court, can do the act or thing that has not been done.
In some circumstances, you may be able to apply to the Court for the person who has not complied with the order to be dealt with for contempt, which may lead to the person’s arrest.
Committal, sequestration and contempt are complicated processes. It is recommended that you get legal advice before trying to file an application for any such order.
Failure to comply with a subpoena
If a person does not comply with a Subpoena - General federal law and migration to produce documents or things or to attend court to give evidence, and has no lawful excuse for not complying, the Court or a Registrar may issue a warrant for the person’s arrest.
Advice
Enforcement is a complex area of law. If you have any legal questions about enforcement, you should get legal advice.
