With more and more Australians living and/or working abroad and in a relationship with nationals from other countries it is important to understand when it is appropriate to obtain Family Law Orders in Australia. For example:
- What happens if you own property overseas but live in Australia or own property in Australia but live overseas?
- What happens if your children are taken overseas without your permission?
- How do you obtain child support from a former partner living overseas?
In today’s multi-cultural society issues of enforcing Australian Family Law Orders in foreign jurisdictions or obtaining Orders in Australia whilst living overseas is increasingly a vexed issue. As is the problem of children being taken out of Australia with or without the other parent’s permission or trying to obtain child support from a former partner living overseas.
In relation to property proceedings, there are fundamentally two questions that require consideration:
- Which Court has jurisdiction? and
- Which Court is the most appropriate forum for the issue of proceedings?
The Family Court and/or the Federal Circuit Court of Australia each have jurisdiction to make Orders in relation to property owned overseas. However an Order made by the Family Court and/or the Federal Circuit Court of Australia is not automatically recognised and enforceable in an International jurisdiction. There may therefore be difficulties in enforcing a property settlement Order made in Australia when the property is overseas.
Orders made in Australia can only be enforced against assets within Australia.
One of the main issues in regard to property settlement is each party’s obligation to make full and frank disclosure of their financial affairs. Often when assets are held overseas and a party does not give full and frank disclosure it is difficult, and potentially expensive, to investigate and identify assets held overseas.
Although Australia is a signatory to reciprocal judgements recognition treaties with various other countries there is a problem with the reciprocal enforcement of Australian property settlement orders in International jurisdictions. The Family Law Act 1975 (Cth) makes reference only to reciprocating jurisdiction in regard to overseas maintenance orders and agreements.
Therefore property settlement orders are not necessarily reciprocally enforceable in foreign jurisdictions because where property proceedings concern property such as land or buildings, the Court in the country where the land or building is situated has exclusive jurisdiction. If the property settlement order can be categorised as “maintenance” then International recognition and enforcement may be possible.
Financial support for the children including not only day to day living expenses but assistance for extra-curricular activities, private health insurance, child care and education etc. is one of the most important considerations for parents after separation.
In a multi-cultural society child support may become an International issue. An assessment or arrangement made through the Child Support Agency in Australia can apply when the children live with one parent in Australia or when the children live with their parent in a reciprocating jurisdiction but the non-resident parent lives in Australia. A person is defined as a resident in Australia if they are resident for the purposes of income tax legislation.
If the liable parent resides in a non-reciprocating country a parent based in Australia may seek a Court Order regarding ongoing maintenance which may be enforceable in the relevant overseas jurisdiction.
Children being taken overseas
Any parent wishing to take a child overseas requires either the other parent’s consent or an Order of the Court. The Court must be satisfied that a trip overseas is in the best interest of the child. The Court will require full details of the dates of travel, the intended destinations, and the date the children will be returned. The Court must consider the risks of the children not being returned to Australia.
Australian legislation requires that the written consent of each parent be provided on an Application for a child’s Passport. If one parent is refusing to sign an Application then the other parent may make an application to the Family Court or the Federal Circuit Court for an Order permitting the passport to be issued without the other parents’ consent.
Alternatively a party may make an Application to the Family Court or the Federal Circuit Court of Australia preventing the passport from being issued if there are genuine concerns that the child may not be returned to Australia.
Where a child has an Australian Passport, and there is a genuine concern that they are going to be removed from Australia without the other parent’s consent, there are circumstances where the Court will order the child’s details be registered on an Airport watch list at all International departure points within Australia. It is hoped that this process will prevent the child from being removed from Australia.
Where a child does not have an Australian passport and there is a genuine concern that the other parent may obtain a passport without the other parent’s consent a child alert request is made to the Department of Foreign Affairs and Trade who will alert the other parent if a passport is issued. This alert usually remains valid for 12 months.
If a child is illegally removed from Australia then an Application should be made to the Family Court under the Hague Convention (which is an International Treaty) to have the child returned to Australia. If the country in which your child has been taken is a signatory to that International treaty then they will assist in the return of the child if it is found they are being wrongly detained in that country. Unfortunately under the Hague Convention countries are not concerned with the parenting issues in dispute but primarily focus on which country is the appropriate forum to hear the dispute. This will usually be the country where the child has normally resided.
Should a child be unlawfully detained in a non-Hague Convention country then there is the dilemma of initiating proceedings under the laws of the country in which the child is detained. The outcome of such applications may be uncertain.
Separating parents should try to openly discuss the issue of overseas travel for their children particularly when one parent lives overseas.