Enforcement of Australian Family Law Orders
Monday July 1, 2013
This article was published in the April 2013 edition of Bulletin, published by The Law Society of South Australia.
Enforcement of Australian Family Law Orders in New Zealand
(by Claire Allen, Solicitor, and Ewan Eggleston, Associate,
Holland Beckett Lawyers, Tauranga, NZ)
With the exodus of New Zealanders moving to Australia reaching a record high in 2012 the issues associated with cross border enforcement of parenting and property orders is becoming increasingly more common. This article canvasses the key issues associated with enforcing Australian orders in New Zealand ("NZ").
Enforcement of Australian property orders
If orders are obtained in Australia, either through the Federal Magistrates Court or the Family Court of Australia ("FCA"), then the orders are currently unable to be registered under the Reciprocal Enforcement of Judgments Act 1934 (NZ) ("REJ") and so are unenforceable in NZ. Currently only the High Court of Australia, the Federal Court of Australia and the Supreme Courts of the States and Territories are deemed to be superior courts and as such the orders are able to be registered and enforced.
The County or District Courts, Local Courts and Magistrates' Courts of the States and Territories are specified as "inferior courts" and are also recognised and so orders enforceable.
The notable omission is the FCA which is not referred to in either category and is not regarded as a "superior" court. This issue has been subject to judicial comment on both sides of the Tasman.
Currently the options available for enforcement of a property order from the FCA are:
- register the FCA orders in a state Court, then there will be grounds to register the orders under the REJ; or
- upon securing orders in Australia apply under the Judicature Act 1908 for summary judgment on the basis of orders in Australia. This is obviously not ideal as it gives a party "second bite at the cherry".
Fortunately the process is under substantial review and once the Trans-Tasman Proceedings Act 2010 ("TTPA") is brought into force, then FCA orders will be considered a "registrable" judgment provided it is final and conclusive. At this stage the TTPA has not been brought into force by either country and awaiting approval from the States and Territories. The TTPA will allow FCA property orders to be registered in the High Court of NZ and then enforced through measures available for orders made in NZ.
Urgent interim relief – property proceedings
When urgent interim relief is required in NZ for substantive proceedings taking place in Australia, the current options for this are:
- An application to the High Court for a "freezing order" or an "injunction", such orders to include:
An order restraining a party from removing any assets located in or outside NZ or from disposing of, dealing with, or diminishing the value of, those assets;
An order for the detention, custody, or preservation of any property; or
An order that a fund be paid into court or otherwise secured if the proceeding concerns the right of a party to the fund.
- A notice of claim or caveat registered over real property, provided that it is protecting an interest in land.
- An application under the Property (Relationships) Act 1976 to restrain disposition of property that would defeat the right of a party under that Act. Any such application must relate to immovable property (real property) or one party must be domiciled in NZ.
Once the TTPA is in force, it will be possible to obtain interim relief in support of Australian proceedings which is anticipated to include injunctive/restraining orders.
Enforcement of Australian parenting orders
The TTPA does not provide for registration in NZ of Australian parenting orders. If a parenting order has been made in Australia then the options for enforcement are:
- Registering the order in a NZ Family Court. Registration is a straight forward process where an order is certified by an officer of the Australian Court confirming that the order remains in force and then sent to the NZ Family Court for registration. Once registered the order can be enforced in the same manner as if the order had been made in NZ.
- An application under the Hague Convention on the Civil Aspects of International Child Abduction.
If there is no Australian parenting order in force and the child/children are in NZ then there is a potentially a quick and cost effective option whereby a parent whose child has been retained in NZ can apply without notice for a parenting order ("live with" order under the FCA). Such orders can be made within 24 hours and then subsequently enforced. Applications should usually be filed in the Court closest to where the child/children are being held to expedite the role of lawyer for child (Independent Children's Lawyer) if required.
Either upon registration of an Australian order, or contemporaneously with an application for a parenting order, an application can be made for a warrant to enforce the order for the police or a social worker to uplift a child. In a practical sense, it is unlikely that such a warrant would be acted upon by the police until the parent residing in Australia or another appropriate adult is present in NZ to take over care of the child once uplifted from the abducting parent.
If there are no grounds to make an application without notice, an application for a parenting order will be placed on notice and will generally take a minimum of six weeks to reach a hearing.
Enforcement of child support and spousal maintenance
Child support or spousal maintenance obligations (by order or Binding Financial Agreement or by administrative assessment) that arises in Australia, and are registered with the Child Support Agency, can be enforced in NZ by the NZ Inland Revenue Department. The respective parties must be habitually resident in each country (that is, one party cannot simply be on holiday in NZ).
The present situation is that the following can be enforced in NZ:
- Parenting orders;
- Child support (by order or Agreement);
- Spousal maintenance (by order or Agreement).
Property orders from the FCA or FMC are not enforceable, and a subsequent NZ order is required to make enforcement possible.