Enforcement of property orders via a section 106A of the Family Law Act 1975 (Cth) order

Section 106A of the Family Law Act 1975 (Cth) allows the Court, where an order has directed a person to execute a deed or instrument and that person refuses or neglects to do so, to appoint an officer of the Court (or another person) to execute the document in place of the defaulting or negligent party. The Court may appoint an officer of the Court or another person to execute the document, and the document then operates as if the defaulting party had signed it.

Section 106A depends upon there already being an order directing execution. If the final orders do not impose a clear obligation to sign identified documents, the Court may first need to make a machinery order creating that obligation before section 106A of the Family Law Act 1975 (Cth) can be invoked.

If the final orders already contain a clear direction that a party sign specific documents within a specified time, and the party refuses or neglects to sign such documents, the usual course is:

1. file an Application—Enforcement (see FCFCOA Rules 2.01 and 11.55(a));

2. file an affidavit complying with FCFCOA Rule 11.06;

3. annex the existing final orders and the documents requiring signature;

4. set out the requests made for signature, the refusal or non-response, and why the document is necessary to give effect to the orders; and

5. seek an order that a Registrar or other authorised person execute the instrument on behalf of the defaulting party under section 106A.

Typical documents include transfers, mortgage discharge documents, sale authorities, and PEXA-related instruments and evidence of requests to comply with the orders made.

If the existing orders do not require execution

There must be an existing order directing execution of the relevant deed or instrument. If the orders are too general or do not identify the necessary execution obligation with sufficient clarity, the Court may first make a machinery order directing the defaulting party to execute identified documents by a fixed date, with section 106A to operate upon default.

Relevant Cases

• In Aitken & Aitken (No 6) [2022] FedCFamC1F 996 it was held that section 106A was not engaged unless there was a mandatory obligation to execute documents. Because the existing orders did not impose that obligation, the Court first made remedial/machinery orders creating an obligation to execute, enabling reliance on section 106A if required in future.

• In Gresham & Gresham (No 4) [2023] FedCFamC1F 996 the Court made orders specifying the documents that were required to be signed, the orders included a 106A order as a fall back enforcement mechanism.