What are Court Orders?
Court orders are legally binding directives issued by a court. These orders must be complied with by the parties involved. The failure to comply can result in disciplinary action, including penalties or sanctions. In the context of Family Law, Court Orders may include divorce decrees, maintenance (or spousal support) Orders, parenting Orders and property Orders. These Orders are designed to ensure that the legal rights and responsibilities of all parties are upheld according to the law.
Can Court Orders obtained in foreign jurisdictions be enforced in Australia?
Put simply, a foreign court order will be enforceable in Australia if
- The order was made by a court in a prescribed jurisdiction (further explanation below); or
- The order has been registered in the Federal Circuit & Family Court of Australia
An order from a foreign court will not be enforceable in Australia if
- It is not made in a prescribed legislation; or
- The order or content of the order is excluded specifically by law i.e. interim orders.
Registration of Overseas Orders
Parenting Orders
Schedule 1A of the Family Law Regulations 1984 contains a list of countries and/or jurisdictions of given countries whose Orders are enforceable in Australia without the need for further action. These countries/parts of countries are –
- USA – 48 states (Excluding Missouri and New Mexico)
- Papua New Guinea
- Switzerland
- Austria
- New Zealand
If a Court Order has been made in a country that is not a prescribed country mentioned above, then additional steps will need to be taken so as to give the orders weight in Australia. An application must be made to the International Family Law Section of the Australian Attorney General’s Department.
Regulation 23 of the Family Law Regulations 1984 indicates that a certified copy of the Court Orders must be submitted to the secretary as well as a signed certificate from an officer of the court in the original jurisdiction of the orders.
An Order can only be registered in Australia if there is reason to believe that a child, parent of a child or another person with rights relating to the child whom the order relates to ordinarily or primarily resides in Australia.
If the original documents of the court Order are in a foreign language, they must be accompanied by a certified English translation when submitted as part of the application.
Once the application is approved and the Order is registered in Australia, it becomes binding and enforceable under the Family Law Act 1975 with the same obligations and consequences as any other Parenting Order made in Australia. These Orders will then remain enforceable throughout Australia until cancelled.
Foreign Child Protection Orders
Australia is a signatory to the 1996, Child Protection Convention (more properly known as the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children). This convention came into force in Australia on 1 August 2003 and provides for international cooperation between fellow signatory countries to recognise protective measures for children. This convention allows for the registration and enforcement of overseas child custody, access or protection Orders in Australia.
In the context of the Hague Child Protection Convention, the process for recognising a foreign Court Order concerning child protection in Australia is outlined below:
Firstly, an application must be made to the Australia Central Authority. They will then assess whether the contents of the Order fall within the scope of the Child Protection Convention. If it is determined that the Order does fall within the scope of the Convention, then they may send it on to a state central authority or the Registrar of an Australian Court so that the order can be registered.
If you are unable to register your overseas court order in Australia through the above pathways then you may need to obtain new court orders in Australia. This may be done through either obtaining consent orders that are signed by all relevant parties or by filing an application in a family court for a parenting order.
Divorce Orders
Under section 104 of the Family Law Act an overseas divorce order will be recognised as valid in Australia granted that either one or both parties to the marriage meet any of the following requirements:
- The respondent was ordinarily residing in the overseas jurisdiction; or
- The applicant was ordinarily residing in the overseas jurisdiction for at least 12 months at the time of the commencement of the proceedings; or
- The overseas jurisdiction was the last place of cohabitation of the parties; or
- Either or both of the parties were domiciled in or nationals of the overseas jurisdiction
Maintenance Orders and Child support between Australia and the USA
As indicated by s111AB of the Family Law Act 1975, there is an agreement between the Government of the United States of America and the Government of Australia related to the enforcement of maintenance orders.
This agreement came into effect in 2002 and provides for reciprocal arrangements between Australia and the United States to establish and enforce child support and spousal maintenance liabilities. The agreement applies to maintenance obligations arising from a marriage or parentage including maintenance obligations towards a child born out of wedlock. In relation to the enforcement of these orders in Australia, the Central authority that all applications must be sent is the Child Support Registrar.
Maintenance Orders and Child support between Australia and New Zealand
Similarly, the New Zealand and Australian governments have had an Agreement in place since March 2000. This Agreement obliges each nation to take steps to enforce maintenance agreements made for the sake of children, child support assessments and spousal maintenance orders.
Conclusion
In summary, if you have previously obtained court orders in another jurisdiction there are ways to enforce those orders in Australia.
If you require legal advice regarding any parenting matters or enforcement of overseas court orders, our highly experienced and qualified Family Lawyers at Genesis Edge will be able to assist you. Please do not hesitate to contact us on 1300 559 888 or fill out the enquiry form here.