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Property Orders from Foreign Jurisdictions

In the Marriage of Caddy & Miller (1986) 84 FLR 169

Australia has arrangements with various foreign countries which enable overseas orders relating to family law property matters to be registered and enforced in the Family Court of Australia. Where there is no reciprocal arrangement, such orders cannot be registered with the Family Court of Australia. However, does this mean that they have no effect? This issue was examined In the Marriage of Caddy & Miller (1986) 84 FLR 169.

In this case, there had been property proceedings which had been determined by a Californian court. The property subject to the proceedings included real estate both in Australia and in the United States. The Californian orders recognised the co-ownership of a property in Rose Bay, Sydney. Following the original US decision, the wife returned to Australia and subsequently sought orders in the Family Court of Australia providing for sole ownership of that property.

The trial judge found that the decision in relation to the property in Sydney was merely declaratory and did not preclude subsequent orders from being made in relation to that property. The court ordered that the Sydney property be vested entirely in the wife’s name. The Husband appealed to the Full Court.

The Full held [at page 177]:

“In our view, the appellant has proved the existence of a prior judicial decision of a court of competent jurisdiction which is final and which involved the determination between the same parties of the same question as is now sought to be litigated in this Court, namely as to settlement of the property of the parties consequent upon the dissolution of their marriage, and in particular as to any alteration of the interests of the parties in the home unit property at Rose Bay, which was part of the property sought to be disposed of and in fact dealt with in the prior judicial decision.”

In this case the wife was not estopped from making an application for property orders but she was restricted in her ability to produce evidence in support of her application for property that was already subject to existing and final orders.

Although property orders from non-reciprocal jurisdictions cannot be registered with the Family Court of Australia, this does not necessarily mean that they do not have any effect.

By Nicholes Family Lawyers


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