Are my overseas Family Law Orders recognised in Australia?
We often have clients relocating to Australia or returning from a country they previously moved to, to have commenced or even finalised family law proceedings overseas. In order for family law orders made overseas to be recognisable and enforceable in Australia, the orders need to be registered in this country. Australia has agreements with some countries and jurisdictions to register overseas court orders so they are enforceable in Australia. The list of relevant jurisdictions can be found in Schedule 1A of the Family Law Regulations 1984.
If you have a court order in one of these countries a request to the International Family Law Section will need to be made, along with three certified copies of the child order and a certificate signed by an officer of the court in the country in which the order was made stating that the order is, at the date of certificate, enforceable in that country or jurisdiction.
Court orders made in other Hague Convention countries may also be registered in Australia. The request must be submitted to the Australian Central Authority, and include a certified copy of the court orders, and a certified English translation if in another language.
If you have a court order from a non-Hague Convention country or are otherwise unable to have your foreign court order registered in Australia you may need to obtain a new child court order in Australia, either by obtaining “consent” orders signed by both parties, or by filing an application in the family law courts for a parenting order.
As to divorce orders made overseas, Section 104 of the Family Law Act allows for recognition of an overseas divorce order as valid under some conditions. The divorce will be recognised if at the time it was granted, either or both of the parties to the marriage met 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
The which must be applied to determine whether a divorce order is valid in Australia is ‘Does a party have a real and substantial connection with the foreign jurisdiction where the order was made?’ Accordingly, foreign divorce orders may be recognised even when the residency requirements set out in the Act are not met.
Section 104 of the Family Law Act also allows for the refusal to recognise divorce orders made overseas in circumstances where the order would not be compliant with those common law principles, such as where one party had been denied procedural fairness, or where recognition of the order would be manifestly contrary to public policy.
Our team of expert family lawyers in Sydney specialist in all areas of family law including property settlement, parenting arrangements and divorce. We have experienced lawyers in international and overseas family law and can assist in registering your overseas family law orders in Australia. Contact our team today.