Australia - Foreign parenting orders in Australia
How will an Australian Court deal with a foreign parenting order?
Generally, Australia Courts cannot abdicate the responsibility of making Orders concerning the care and welfare of a child by registering, mirroring or otherwise recognising existing foreign orders. The leading common law case on this issue is McKee v McKee, which was an appeal to the Privy Council in the United Kingdom from Ontario. In that case the mother had a Californian-made custody order. The father took the son to Ontario and the mother then sought to have her son returned to California. It was held that the paramount concern for the Court was the welfare of the child. In McKee, it was determined that the existence of the Californian custody order in favour of the mother and deliberate contravention of that order by the father did not necessarily mean that the Court would automatically uphold the Californian orders; these were found to be mere factors for consideration.
Their Honours found that it must make an independent judgment, though in doing so it had to give ‘proper weight' to the foreign order. Generally, a foreign order will have more weight if, for example:
- It is a recent order, rather than an order that was made a considerable period of time ago;
- There have been minimal changes to the circumstances of the child's care.
However, notwithstanding these matters that are relevant to weight, the Court in McKee found that in all cases it must make its own ruling as to the best interests of the child.
In Kades v Kades (1961) 35 ALJR 251, the Australia High Court upheld the applicability of the principles set down by their Honours in McKee in Australia. Therefore, Australian courts are generally required to consider any foreign parenting orders in the context of making a determination as to the best interests of the child.
Weight of foreign orders in Hague Convention cases
A foreign parenting order may or may not have significant weight in applications under the Hague Convention on the Civil Aspects of International Child Abduction. Pursuant to Regulation 18 of the Family Law (Child Abduction Convention) Regulations, foreign parenting orders may be relevant as a Court may take into account the reasons for the making of any order relating to the custody of the child. However, the existence of an order does not necessarily improve the chances of an Application for the Return of a child under the regulations being successful. For example, if an order were made giving the primary care of a child to the parent who removed the child from the country and only limited, supervised contact to the other parent, then the judge who made those orders may have given reasons outlining why those orders were made which may strengthen a case alleging, for example, grave risk.
The registration of certain foreign parenting orders in Australia
There is an exception to the above position with respect to the treatment of foreign parenting orders. Division 13 of Pt VII Family Law Act 1975 (Cth) lists a number of ‘prescribed jurisdictions' with which Australia has an agreement enabling overseas child orders made in those certain countries to be registered in Australia and enforced as they would be in the relevant prescribed jurisdiction.
An overseas child order is an order made by a court of a prescribed overseas jurisdiction determining:-
- With whom a child is to live (or who is to have custody of the child); and/or
- The time a child is to spend with any person or persons (and the contact a person is to have with the child).
An interim or ex parte order is not registrable, as it falls within the definition of an ‘excluded order' in section 4 of the Family Law Act 2004.
Procedure for registration
The procedures for registration are set out in Regulation 23 of the Family Law Regulations, and can be summarised as follows:
1. A certified copy of the order made in the prescribed jurisdiction, together with a certificate signed by an appropriate authority containing a statement that the order is enforceable, must be sent to the Secretary to the Commonwealth Attorney-General's Department;
2. The Secretary must be satisfied there are reasonable grounds to believe that the child, parent, or other person ‘having the right to have the child live with him or her, or the right of custody of or access to the child, or the right to spend time or communicate with the child' is ordinarily resident in, present in, or proceeding to, Australia;
3. The Secretary must then send the documents to a Registrar of the Family Court, Family Court of Western Australia, or of the Supreme Court of a state or territory;
4. The Registrar must register the order by filing the documents in the Court upon receiving the documents from the Secretary.
Once registered, an order has effect as if it was an order of the Australian Court and is enforceable throughout Australia. The Order may be varied by an Australian court on the basis of, for example, welfare grounds or a change in circumstances. Orders may be registered administratively (through the responsible central government department) or privately.
The prescribed jurisdictions include:
- New Zealand;
- Papua New Guinea;
- Switzerland; and
- Most states of the USA.
However, subject to these limited exceptions, overseas children orders will not normally be enforced in Australia in their own right. Courts will deal with issues concerning parental responsibility and the care, welfare and development of the children in accordance with the Australian statutory provisions. The paramount consideration for Australian courts in making or enforcing existing orders (including registered overseas orders) is the best interests of the child, notwithstanding that this may not be the paramount consideration in the jurisdiction in which the existing orders were made.
 Division 13 of Pt VII Family Law Act 1975 (Cth).
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