A parenting order is a legally binding order made by a court about who should have parental responsibility for a child. In certain circumstances, it is possible to enforce in Australia a parenting order that has been made overseas.
Enforceable Parenting Orders
The law states that an international parenting order will be enforceable in Australia if:
- it is made by a court in a “prescribed jurisdiction”; and
- it is registered in the Family Court.
The law sets out a list of prescribed jurisdictions, which include:
- Papua New Guinea;
- Switzerland; and
- most states in the USA.
Registering a Parenting Order in the Family Court
In order to register a compliant international parenting order in the Family Court, the court will need to be supplied with:
- a certified copy of the order – the Attorney General requests 3 certified copies;
- a certificate, signed by an officer of the court (or some similar authority) in that jurisdiction, containing a statement that the order is, at the date of the certificate, enforceable in that jurisdiction; and
- evidence showing that there are reasonable grounds for believing the following person is currently, or will be, in Australia:
- the child;
- the child’s parent; or
- a person who has rights to spent time, access, live with or communicate with the child.
Non Enforceable Parenting Orders
Not all international parenting orders can be enforced in Australia in this way, including those orders:
- that are not made in a prescribed jurisdiction; and
- that the law specifically excludes, such as, interim orders.
You may still be able to enforce the provisions of orders that are not enforceable through the registration procedure. To do this, you will need to go through the normal court procedures to have new parenting orders made by the Family Court that mirror the terms of the overseas order.
These orders are called “mirror orders”. The existence of the international order will be considered when the court makes new orders, although the court will not make “mirror orders” unless it is satisfied that the parenting orders are in the best interests of the child.
Child Protection Convention
Australia is a party to the 1996 Hague Child Protection Convention. The Child Protection Convention includes provisions for the mutual recognition and enforcement of protection measures made in convention countries. If you have a child protection order made by a court in a convention country, you may be able to have it enforced in Australia.
Applications to register an international measure made by a court in a convention country must be made to the Secretary of the Attorney General’s Department either directly or by the originating court. If you are making the application directly, you will need to send the Secretary a certified copy of the court order and a certified English translation, if necessary. The Secretary will then determine if the measure is registerable, and if so, will arrange for it to be registered.
The rules for registering an international parenting order are clearly set out in the law. However, if you have an order made by an international court that does not fulfill the criteria for registration, you may still be able enforce it in Australia. You may be able to do this either:
- by obtaining a mirror order; or
- as part of Australia’s obligations under international conventions to which it is a signatory.
Australia is a party to a number of international conventions relating to children, including conventions relating to child abduction and spousal and child maintenance. Owen Hodge Lawyers would be happy to discuss your situation with you and help you identify the best approach in enforcing the terms of your order in NSW. Call us today at 1800 770 780 or contact us via [email protected] for a consultation with one of our experienced family lawyers.