Australia is a multicultural society, and this diversity is increasingly reflected in the Federal Circuit and Family Court of Australia, as well as the broader Family Law domain. In many cases involving separated couples, there is an international element when it comes to finalising their property and financial matters. It is not uncommon for one or both parties to have assets or property interests overseas. Additionally, it is not unusual for a party to return to their native country and obtain Final Orders that affect property interests in Australia.
However, a critical question arises:
Are overseas Family Law Final Orders enforceable if the other party initiates legal proceedings in Australia?
Cause of Action Estoppel
Cause of action estoppel prevents a party from asserting or pursuing a claim in a subsequent proceeding that has already been decided by a previous Court. In order for an overseas Order to be enforceable in Australia, the party seeking enforcement must demonstrate to the Court that the overseas jurisdiction specifically addressed the issue in question.
For example, in the case of Clayton and Bant [2020] HCA 44, the parties had assets in both the United Arab Emirates (UAE) and Australia. The husband obtained Final Property Orders in the UAE. The High Court of Australia ruled that given the UAE Court did not have jurisdiction over assets located outside the UAE, the wife's application to obtain Property Orders in Australia was not precluded by cause of action estoppel because the issue was not brought before the UAE Court in the overseas proceeding. Ultimately, the High Court concluded that the UAE Final Order was not enforceable in Australia.
Henderson Extension Estoppel/Anshun Estoppel
The Henderson extension, originating from an English case in 1843, is referred to as the Anshun estoppel in Australia, following the case of Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. This principle prevents the assertion of a claim or the raising of an issue of fact or law if that claim or issue is so closely connected to the subject matter of the first proceeding that it would have been unreasonable for the claim not to have been made or the issue not to have been raised in that proceeding.
To establish enforceability of an overseas Order, the party seeking enforcement must show that the other party had ample opportunity to raise their claim in the overseas jurisdiction but failed to do so. This includes cases where the other party was notified of the overseas proceedings but chose not to participate. In the case of Clayton v Bant, the wife could not have raised issues regarding Australian assets because they were outside the jurisdiction of the UAE Court.
Conclusion
The presence of overseas Family Law Orders can introduce complexities and uncertainties regarding their enforceability in Australia. If you are seeking to obtain overseas Family Law Orders or are a party to such orders, we strongly advise consulting with a Family Law team that has specific experience in this area.
Our experienced Family Law team has extensive knowledge of the enforceability of overseas Family Law Orders. Clients across the country commonly consult or retain us to provide expert advice on this. We invite you to contact our team to discuss any issues or queries you may have, so that we can help you achieve the best possible outcome.
Associate,
Hope Earle Lawyers