Australia has agreements with other countries and jurisdictions that allow the registration of overseas orders. While it's normal seeing couples divorcing in Australia, some couples may also want to start divorce proceedings overseas. Although it is possible to register court orders overseas, the process will depend on the type of orders needed.
The countries where couples may register court orders are listed in Schedule 1A of the Family Law Regulations 1984. Family law orders made outside of Australia must be registered in order to be recognised and enforced in Australia. Here are the requirements for parents who want the court to recognise and enforce overseas orders:
- A request to the International Family Law Section with three (3) certified copies of the order
- A certificate signed by an officer of a court
- A certificate signed by some other authority in the country where the order was made
- A statement that the order is enforceable in that country and jurisdiction
While these are just the primary requirements for enforcing overseas orders, the processing time may depend on the couple's circumstances. That's why it's also important to know about relevant laws that relate to the registration of overseas orders. Read on to know more about these laws and regulations in the Family Law Act 1975.
Section 70G: Registration of Overseas Child Orders
Section 70G of the Family Law Act allows the making of provisions in relation to the registration of overseas child orders in Australia. Overseas child orders are basically orders that cover parental responsibility, child access, guardianship, and administration of a child's property. However, it's important to note that courts will only recognise an overseas child order if the following people are in Australia:
- The child
- At least one of the child's parents
- Any person who has rights relating to the child under a court order
Section 70H: Effect of Registration of Overseas Orders
According to Section 70H, registered overseas child orders have the same effect as court-made orders. However, the international protection of children may affect the operation of a registered overseas child order. Australia is part of the Hague Convention which has jurisdiction, states applicable laws, recognition, enforcement, and cooperation regarding international child protection.
Section 70J: Effect of Registration on Exercise Jurisdiction
A court that is aware of the registration of overseas orders for children must not exercise jurisdiction for making a parenting order. However, the court may do so in two instances. Firstly, people under the overseas order must consent to the court exercising its jurisdiction in the proceedings. These people are:
- Whom the child will live with
- Who will spend time with the child
- Who will have contact with the child
- Who has rights and custody or access to the child
Secondly, the court must be satisfied that there are substantial grounds for making a parenting order for the child's welfare and protection. The court may also make a parenting order if there has been a change in the circumstances of the child since the making of an overseas child order.
Section 70K: Cancellation of Registration of Overseas Orders
According to Section 70K, courts may cancel the registration of an overseas child order. However, the court must ensure that there was already a prior registered overseas child order or parenting order. That parenting order must also adhere to the child concerned.
Section 70L: Australian Orders and Registered Overseas Child Orders
So what is the relationship between Australian orders and registered overseas child orders? Section 70L will only apply in cases if there are Australian child orders in force. Australian child orders are parenting orders or state child orders. The Section will also apply if there is an overseas child order that relates to a child.
However, this overseas child order must have a different effect from the Australian orders under Section 70G. A responsible person may apply to a court to also discharge or cancel an Australian child order. These responsible persons, in relation to Australian child orders or overseas child orders, are persons:
- Who a child is supposed to live with, spend time with, or have contact with under the order
- Responsible for the child's day-to-day care, welfare, and development under the order
- Who has a right to custody of, or access to the child under the order
A responsible person can satisfy the court to cancel the registration of overseas orders relating to children if:
- The operation of the overseas child order will adversely affect the child's welfare
- There has been a change in the child's circumstances and to continue the operation of the order is inappropriate.
In the case of Sigley and Sigley (2018), both Mr and Ms Sigley sought the registration of overseas orders for their child in the United States of America (USA). Both Mr and Ms Sigley are Australian citizens and are originally from Victoria but have been residing in the USA for some years. Both of their children were conceived through surrogacy arrangements.
The judge in this case was concerned about the difficulty of attracting the favourable exercise of jurisdiction. Moreover, the judge also had to register the overseas child order in an Australian Court for public policy reasons. What are these reasons? Entering into commercial surrogacy arrangements abroad is a criminal offence in Queensland, New South Wales, and the Australian Capital Territory.
Both Mr and Ms Sigley entered into a commercial surrogacy agreement. They then asked the Family Court of Australia to register an American court order that grants them parenting rights over their child. Both of the Sigleys would have committed a criminal offence if they were residents of Queensland, New South Wales, and the Australian Capital Territory.
However, the solicitors of the applicants stated that Victoria allows parents to enter into commercial surrogacy arrangements overseas. Moreover, Victoria has not sought to criminalise such arrangements.
The judge then decided that the commercial nature of the surrogacy agreement should not be used to exercise discretion against the Applicants. Hence, the judge agreed to register the American court order in Australia.
Importance of Seeking Legal Advice
The registration of overseas orders will definitely require the aid of a family solicitor. Just like in our case, the solicitor was able to defend the Sigleys' case and satisfied the court in approving the overseas child order. JB Solicitors has seasoned family lawyers that can aid in registering family law orders whether in Australia or overseas.
Message a family lawyer today.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.