Globalisation of Parenting Orders

In a world that is fast becoming international, global, an interconnected it’s not unreasonable to assume that some Family Court orders will need to operate in different places of the world.

International cooperation between convention countries is covered under the Child Protection Convention of 1996. This Convention includes recognition and enforcement of protection measures – such as court orders, made in respective convention countries. The aim or the purpose is to unite convention countries in recognising each other’s protection measures.

What this means for us is it is possible to register mirror orders in Convention Countries provided some conditions are met.

In the 2014 in the case of Merrick & Wellington, Justice Bennett heard an application under the Child Protection Convention 1996 to register by consent parenting orders from the Family Court in England. Judge Lancaster from the Family Court in the United Kingdom had made it a condition precedent of a mother’s relocation with her child to Australia that she be able to register mirror orders in the Family Court of Australia.

When Justice Bennett heard the application he considered, amongst many things, the issue of jurisdiction and remarked:

Whilst the child will acquire habitual residence in Australia in the context of her permanent relocation, she is not yet habitually resident in Australia. However I am prepared to infer that his Honour Judge Lancaster agrees to the Family Court of Australia assuming jurisdiction over the family by making the child’s relocation conditional upon this court first making orders which specifically reflect that part of his Honour’s child arrangements order which is to take effect once the child arrives here.

Justice Bennett then went on to contemplate the parenting orders that were drafted in the United Kingdom and noted that: the orders were drafted in a passive language, there was an absence of specific times, and specific obligations around providing advance notice of dates, for purchasing travel tickets and so forth which could cause uncertainty around the interpretation of the orders and in the worst case diminish compliance. A blending of Australian and United Kingdom legislation was thus required.

In order to alleviate these issues above Justice Bennett went on to make orders which were:

  1. In the form of the UK order being recognised and registered as enforceable pursuant to the 1996 Convention; and
  2. Enforceable in Australia ensuring the best interests of the child and giving effect to the intention of Australia’s international obligations; and

What that means for couples seeking to register parenting orders in Convention Countries is that when contemplating doing this, some knowledge of the family law legislation in that particular country ought to be held in contemplation when drafting our orders so to ensure that the amending of orders is minimal and that the mirroring of provisions are as close to identical as possible.

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