Enforcement Warrant - Seizure & Sale of Property

Rule 11.15 of the Family Law Rules lets a payee, without notice to the payer, ask the court to issue an Enforcement Warrant by filing an affidavit and the warrant sought, with a copy for service. The affidavit must meet rule 11.06 (the order or agreement, the amount owing and how it is calculated, and the enforcement history) and give details of the payer's real and personal property (r 11.15(2)). Once issued and sealed, the warrant directs an enforcement officer to seize and sell enough of the payer's property, other than prescribed property, to pay the amount owed plus enforcement fees and expenses, and remains in force for 12 months (r 11.17). The sale process, notice requirements and third-party claims are in rules 11.18 to 11.31.

When you need it

• Someone owes you money under a family law order, a child support assessment or an agreement, and has not paid.
• The payer has real property or personal property that could be seized and sold.
• You want enforcement without first giving the payer notice. A child support liability that is not already an order must first be turned into an order for the amount owed (r 11.03).

1. 1

   Part A - the parties

   Give the names of the applicant (payee) and respondent (payer), the payee's address for service (and lawyer's code) and the respondent's address. Attach a page for any second applicant or respondent.

2. 2

   Part B - the obligation

   Tick whether the debt arises from an order (court and date), a child support assessment (date) or an agreement (parties and date). Then set out the amount owed, payments made, the balance, any interest, the cost of the warrant application and the total.

3. 3

   Part C - the property

   List the known real property (address, registered owners, title reference) and personal property. The form notes that real property must first be registered on the land titles register, and that certain prescribed property cannot be taken.

4. 4

   Part D - court use

   Leave the signature block for the Registrar, but tick who prepared the warrant and add a lawyer's name and code if applicable.

• Lodge the warrant for filing by email to enforcementlist@fcfcoa.gov.au with an Affidavit - Family law and child support that complies with rules 11.06 and 11.15(2) (form page). Read the Family Law Practice Direction - National Enforcement List first. A filing fee may apply.
• The affidavit seeking a warrant without notice does not have to be served (r 2.28(5)(e)).
• If the warrant issues, give the enforcement officer the warrant and either an undertaking to pay reasonable enforcement fees and expenses or the amount the officer asks for on account (r 11.16). The court's page says the Marshal can be engaged through marshal@fedcourt.gov.au, or the court can appoint another person.
• At least 28 days before real property is sold, the payee must notify the payer and prior encumbrancers and give the officer the evidence listed in r 11.25, including registration of the warrant on the title and a market appraisal.

• Show how every figure in Part B is calculated in your affidavit, with the dates and amounts of payments received.
• Check the title search before filing: you need to prove the payer is the registered owner and disclose encumbrances (r 11.15(2)(b)).
• A person who claims seized property can serve a notice of claim, and the warrant cannot be executed for 7 days after it is served on the payee (r 11.27).