It’s one thing to go to court and obtain court orders requiring your ex to do something, but what happens if compliance with the court orders is an issue? If you can’t resolve your situation by reaching agreement or attending dispute resolution, it will be necessary for you to apply to the courts to make an order to enforce the original order. Say your ex has been court-ordered to vacate a property they are living in, so that you can proceed with a sale of that property. What happens if they don’t leave and how do you force them to? Let’s take a look at what you can do when your ex won’t comply with court orders.
When your ex won’t vacate a property
A recent case in the family courts dealt with this issue and ended up with the husband being required to vacate a property he was living in within 48 hours. Although this may at first seem like a drastically short timeframe, consider that in this particular case, orders had previously been made allowing the husband 28 days to vacate, but he had not done so.
In the matter of Neumann & Haas (court-appointed pseudonyms), the judge found the husband was deliberately frustrating the sale of the property and that his likely intent was to continue to remain living there rent free as long as possible.
After the husband refused to comply with the previous orders requiring that he cooperate with the sale and leave the home, the wife made an Application in a Case seeking that (among other things) the husband vacate the property within 48 hours and if he did not, that a warrant for possession be issued.
The court found that the husband’s conduct was indicative that he was trying to prevent the property being sold. For example, he refused to allow a valuer to inspect the property, was removing and selling fixtures from the property, and had been trying to dissuade a purchaser from buying during an inspection at which he was present. Because of the husband’s history of non-compliance with court orders, the judge didn’t have confidence the husband would comply with the new order to vacate, and therefore enabled the wife to have a warrant for possession issued if the husband still would not leave the home.
This is very similar to a case we mentioned last year (pseudonymised as Ahsan & Ahsan) relating to the enforcement of orders and the remedy of issuing a warrant for possession of real property. In that case too, orders had provided for the sale of the former family home (where the husband was living) and the distribution of sale proceeds but the husband obstructed the wife in her efforts to sell the home. The wife then sought enforcement orders to 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.
What 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.
The rules for warrants for possession of real property are complicated, so it’s important to obtain legal advice on your matter if it involves enforcement action. There may also be strategic advantages to making an enforcement application, whether because it may help apply pressure to your ex, or because it will enable you to discover financial information to determine, for example, whether compliance is likely or whether assets exist that can be seized.
Note too that courts may also award costs against someone who is seen to be thwarting efforts to sell a property or otherwise comply with court orders, if the conduct means the other party is forced to return to court for enforcement orders.
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.
