David Hodson on International Family Law: A Bridge over Tasman waters

12 July 2012

New bilateral legislation comes into force later this year between Australia and New Zealand to resolve a number of difficult contentious family law issues between the two countries. Although some relevance to those English lawyers undertaking Anglo Antipodean work, it is an interesting insight into how two incredibly close jurisdictions with so much similarity of culture and heritage have worked through their family law differences. It is the Trans-Tasman Proceedings Act 2012 expected to be passed into law in both countries later in 2012.

 Ewan Eggleston, a solicitor in Tauranga, New Zealand, (ewan.eggleston@hobec.co.nz) has written an extremely helpful article for the July edition of the New South Wales Law Society Journal including some comparison between Australian and New Zealand financial provision law.

Each year many from Australia and New Zealand travel to live and work in the other country, especially Kiwis moving to Oz. Very often both countries have jurisdiction in trans-Tasman family law cases. Both are common law, with stronger legislative foundations than England. Yet they are very different. Australia has a much closer similarity to England with reference to section 25 type factors. In contrast, a few years ago New Zealand introduced legislation with a much greater reference to categorisation of assets, an expectation of sharing relationship property after three years of the relationship and particularly in the family home, and with much lesser reference to needs and economic disparity than Australia and England. Curiously the result of the present English Law Commission enquiry may be to move us closer to New Zealand than Australia.

One of the major problems was that orders in first instance Australian family court cases were not enforceable in New Zealand even though a number of cases concerned New Zealand property. Only the higher court orders would be registered and enforceable. Under the new legislation, family court orders at all levels in the two jurisdictions will be registrable and treated as final and conclusive and therefore able to be enforced. This will extend to injunctions and declaratory relief. It will still require registration of the judgement. It is not automatic as by contrast with the EU Maintenance Regulation.

One of the major issues which has serious impact in Anglo Australian cases here is the very different forum criteria between the jurisdictions. Whilst New Zealand has the same forum non conveniens, closest connection discretionary test as does England with non-EU countries, Australia has notoriously a heavily Australian biased test. It will take forum unless Australia is a "clearly inappropriate" forum. By case law, this is not simply the balance of the connecting factors. Australia must be inappropriate and clearly so for the proceedings. The consequence is that there have been many cases in parallel between Australia and New Zealand where the balance of connection is clearly with New Zealand and yet it is not clearly inappropriate for the proceedings to be in Australia. There is the unattractive situation in many cases where two geographically and culturally close jurisdictions are both dealing with the same case according to their forum law. Although lesser in number, the same position prevails in England where England is clearly the forum with which the family has the closest connection, perhaps even decided after a forum hearing, yet Australia perseveres in dealing with the case because it is not clearly inappropriate to do so. A nightmare scenario for the couple concerned.

The new legislation overcomes this problem, at least between Australia and New Zealand. Australia has given up its forum test and adopted the "more appropriate forum" test, complemented by a list of discretionary factors. Unfortunately it is only with New Zealand. The same problem continues to prevail between Australia and every other jurisdiction around the world. The perception from Australian practitioners is that Australia is unlikely to give up this test with other countries because it is deep-seated and found in other non-family law legislation. This is a huge pity because it is a disservice to Australian family law and creates unnecessary parallel litigation. Australia should accept a forum change worldwide as it has with New Zealand

Policymakers in Brussels should take note that apparently at no stage was there any contemplation of introducing forum based on the first to issue, lis pendens, a criteria almost universally condemned by practitioners and others and yet stoically, doggedly and wrongly persevered from Belgium.

Australia has binding financial agreements. They have the same status as court orders, and indeed often court orders are not needed. They have very stiff qualifying conditions and the English Law Commission has looked carefully at them in its own consultation on marital agreements. These Australian agreements presently need enforcement through separate proceedings in New Zealand but after the new legislation will be made into a consent order for immediate enforcement. Unfortunately the opposite is not the case and Australia will continue neither to recognise or enforce New Zealand marital agreements, which have lesser qualifying conditions although still substantially more than in civil law jurisdictions across Europe. Possibly one of the biggest issues in international family law over the coming years will be the status of international marital agreements especially when they do not have the qualifying conditions and surrounding circumstances as required under national law. It is a huge problem around Europe. It will still continue a problem between New Zealand and Australia notwithstanding that both require some qualifying conditions.

Jurisdiction itself for financial claims is very different between Australia and New Zealand. Australia is based more on citizenship and presence whereas New Zealand looks more to the nature of the property being considered rather than connection of the parties themselves. Neither incidentally rely on habitual residence with which at times the EU seems completely besotted, even apparently demanding (on one interpretation of the EU Maintenance Regulation) that national courts should have no power to deal with needs-based claims unless habitual residence exists. Yet again it is of interest to see that leading and advanced jurisdictions, dealing regularly with cases with the UK, have very different jurisdiction provisions from that which the EU seeks to impose on the UK. Legislation may be acceptable between EU countries but under no circumstances should it prevail between the UK and non-EU countries which are so different in their jurisdictional basis.

For international families between Australia and New Zealand this is an excellent cross border bilateral development in legislation. The governments of each country are to be thoroughly commended and congratulated. It will undoubtedly make it easier, simpler, less costly, more effective between the two countries. From Europe we simply look with envious eyes at how such cross-border difficulties could be tackled. Instead we go back wearily to the Brussels and Maintenance Regulations! 

David Hodson is a Partner at The International Family Law Group LLP. He acts in complex family law cases, often with an international element.  

He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and chair of the Family Law Review Group of the Centre for Social Justice.

David is the author of a new major reference work, The International Family Law Practice as well as A Practical Guide to International Family Law (Jordan Publishing, 2008). He can be contacted on dh@davidhodson.com.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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