AUSTRALIA Law and Practice Contributed by: Paul Doolan, Melinda Winning, Carly Middleton and Jeff Marhinin, Barkus Doolan Winning
fails to comply wilfully with the terms of an order. • A party may be liable to a contravention application if they fail to meet their obligations pursuant to a financial order. Punishments for a contravention range depending upon the nature and severity of the breach and the extent of its wilfulness. • Orders for enforcement can be sought against a defaulting party, including for the garnish - ment of wages, sale of assets, injunctions on the disposal of assets pending making good the breach, appointment of trustees for sale, appointment of administrators or liquidators to relevant entities, and for the winding-up of companies. • In circumstances where there is a risk of a party seeking to leave the Australian jurisdic - tion to avoid the payment of monies, a court may be willing to grant an injunction in the form of a departure prohibition order, prevent - ing a party from leaving Australia until compli - ance. • Depending upon the nature of the breach, if there are other proceedings under the Fam - ily Law Act ongoing, the court may take the view that the party should not be entitled to prosecute those further proceedings unless and until they remedy the breach of an exist - ing order. • A party who defaults on a financial order, causing the other party to bring enforcement proceedings, is likely to be subject to an order to pay the costs of the innocent party of those subsequent proceedings. • The rules of court provide for penalty interest to apply from the date of a default. Enforcement in Australia of Financial Orders Made in a Foreign Jurisdiction Australian law provides for the enforcement in Australia of some foreign orders where there are
assets situated within the Australian jurisdiction. In overly simplistic terms, such enforcement is available to enforce a monetary as distinct from a non-monetary order. The question of whether a particular foreign order is capable of enforcement in Australia is very much a question that needs to be examined on a case-by-case basis and depends upon: • the identity of the country in which the order is made; • the court that issued the order; • the form of the order; and • the nature of the order in question. By way of a simplistic example, an Australian court would not recognise an order from a for - eign court that provided for sale of Australian real property, but may enforce an order of a rel - evant convention country if the order provided for payment of a monetary sum only. 2.8 Media Access and Transparency Although Australia has a system of open justice, it is an offence (subject to various exceptions) under the Family Law Act to publish or dissemi - nate the name or identity of a party or witness to proceedings of any nature under the Family Law Act. That means that, even though a case of public interest might be reported by the media as to its general terms, it is a criminal offence for any media organisation (or any third party, for that matter) to publish the actual names of the parties or witnesses involved in the case or to undertake any other reporting that would enable the identification of those persons. Decisions made by judges of the Federal Circuit Court and Family Court of Australia Division 1, the Federal Circuit and Family Court of Australia Division 2, and the Family Court of Western Aus -
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