A recent case in the family court (given the pseudonym Ahsan & Ahsan) related to the enforcement of orders and looked at the remedy of the issuing of a warrant for possession of real property when a party has not complied with court orders to vacate the property. So what exactly is a warrant for possession?
A warrant for possession issued by the courts authorises an enforcement officer to enter a property and give possession to the person entitled to possession. The power to issue a warrant for possession of real property is found in Part XIII of the Family Law Act 1975.
In this particular matter, the husband and wife had been married for 14 years before splitting, and after a protracted litigation, final property orders had been made to resolve the dispute. The orders provided for the sale of the former family home (where the husband was living) and the distribution of sale proceeds. The wife was appointed sole trustee of the sale (which means she has the power to make all decisions about the sale).
The husband had filed an appeal, but it was later deemed abandoned as he had failed to comply with requirements to file certain documents. He did attempt to reinstate the appeal but his application to do that was dismissed.
Meanwhile, the husband obstructed the wife in making arrangements to sell the home. He ignored the real estate agent, and refused to provide access to the home, take photos and do whatever was necessary to get the property ready for a marketing campaign. Eventually the agent did make contact with the husband, who told the agent “I don’t have time for this” and shut the door in the agent’s face.
The wife was then sought enforcement orders to essentially force the husband to comply and vacate the home. A warrant for possession of property was issued that required the husband to give vacant possession of the property to the wife, failing which enforcement officers would enforce the warrant.
The husband didn’t challenge the wife’s evidence relating to his lack of cooperation and actions to obstruct her attempts to sell the property. He gave the court no explanation as to why there was an “absolute rejection” of attempts to facilitate inspections by the real estate agent. He argued however the agent could arrange the sale of the home while he was still living in it. But the court had no confidence that he wouldn’t continue to thwart the sale of the home. The judge noted:
“This is particularly so having regard to [the husband’s] well-documented history over many years of failure to comply with a range of court orders, and his attitude towards the wife and anything that involves cooperation with her…”
Costs of obtaining a warrant for possession
The courts have a discretion to make an order for costs if they feel it is justified. In this case, the husband was handed the wife’s costs of making the application which amounted to $15,000. In making this decision, the courts noted that the enforcement application was only needed due to the husband’s failure to comply with previous court orders. As such, the court did not think it would be fair for the wife to have to shoulder the costs she incurred in bringing the application when it was purely because of the husband’s behaviour that she had do so.
You can read this case here.
You may also like to read our blog on what do if you need help with enforcement of financial orders.
As the rules for warrants for possession of real property are complicated, it’s important to obtain legal advice on the matter. For advice on enforcement of orders, or with a property settlement generally, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.
