Family Law and Divorce

Parenting Orders are essential legal tools that ensure the welfare and management of children’s upbringing. In our increasingly globalised world, families often face situations where Parenting Orders issued overseas must be recognised and enforced in Australia. This article explores the conditions under which overseas Parenting Orders can be enforceable in Australia.

Understanding Parenting Orders

Parenting Orders are court-issued directives that outline arrangements for a child’s care, welfare, and development. These orders can address various issues, such as custody, visitation rights, and child support.

Recognition of Overseas Parenting Orders in Australia

Australia has arrangements with several countries to register overseas court orders and make them enforceable in Australia. These countries are listed in Schedule 1A of the Family Law Regulations 1984, available on the ComLaw website.

Relevant Legislation

The Family Law Act 1975 (Cth) and the Family Law Regulations 1984 provide the legal framework for recognising and enforcing overseas Parenting Orders in Australia.

Conditions for Enforceability

Pursuant to the Family Law Regulations, international Parenting Orders will likely be enforceable in Australia if they meet the following conditions:

1. They are made by a court in a “prescribed jurisdiction.”
2. They are registered in the Federal Circuit & Family Court of Australia.

The list of prescribed jurisdictions includes most states in the US.

The Process for Registration

To register an international Parenting Order in the Federal Circuit & Family Court of Australia, the following documents must be provided:

1. If you have a court order in one of these countries a request to the International Family Law Section will need to be made
2. A certified copy of the order (the Attorney General requests three certified copies).
3. A certificate signed by an officer of the court (or similar authority) in the jurisdiction where the order was made stating that the order is currently enforceable there.
4. Evidence shows reasonable grounds for believing the child, the child’s parent, or a person with rights regarding the child is currently or will be in Australia.

Exceptions to Enforceability

Not all international Parenting Orders can be enforced in Australia through this registration process. Exceptions include:

1. Orders not made in a prescribed jurisdiction.
2. Orders specifically excluded by law, such as interim orders.

Enforcing Non-Registered Orders

It may still be possible to enforce provisions of orders that cannot be registered through the normal court procedures. This involves applying for new Parenting Orders in the Federal Circuit & Family Court of Australia that mirror the terms of the overseas order, known as “mirror orders.” The court will consider the international order but will only make mirror orders if they are in the child’s best interests.

The Hague Convention on Child Protection

The 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement, and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children (the Child Protection Convention) also provides for registering overseas child custody, access or protection orders in Australia. Due to the complexity of the Convention’s provisions, legal advice is crucial in these cases.

Obtaining New Parenting Orders in Australia

If the registration process is not applicable, parties may need to obtain new Parenting Orders in Australia. This can be achieved by obtaining “Consent Orders” that both parties sign or by filing an Initiating Application and other required documents in the Federal Circuit & Family Court of Australia.

Next Steps

Finding your way through the enforceability of overseas Parenting Orders in Australia requires understanding the relevant legal framework and processes. While it can be complex, mechanisms are in place to ensure that such orders can be recognised and enforced, always prioritising the child’s best interests.

If you are dealing with an overseas Parenting Order and need legal assistance, contact Koffels Solicitors and Barristers. Our experienced family law team is here to help you navigate the legal process and ensure your child’s best interests are protected.