7TH FAMILY LAW CONFERENCE 2011 MELBOURNE: 22 MARCH 2011

INTERNATIONAL FAMILY LAW

Issues Related to Service, the Taking of Evidence and the Trans-Tasman Proceedings Act

by John Spender

Kennedy Partners Lawyers Melbourne

INTRODUCTION

Thank you all for coming today.

Ian Kennedy has just discussed with you issues relating to establishing whether Australia or another country has jurisdiction or is, or is not as the case may be, a "clearly inappropriate forum", and ought to decline jurisdiction.

I wish to highlight some issues which might arise when Australia does have jurisdiction, there are proceedings in Australia, and the other party is either located overseas or there is matrimonial property overseas.

1. SERVICE OF ANOTHER PARTY OVERSEAS

In many cases, the issue may simply be that the other party is a resident in another country. There may be no matrimonial property overseas at all. This issue of course can arise even in non-financial cases (for example, applications for parenting orders or applications for divorce).

In these circumstances it is very important to be aware that Australia has recently ratified the Convention on the Service abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of 1965 (hereinafter referred to as "the Hague Service Convention").

Although the Hague Service Convention commenced in 1965, Australia ratified it only on 15 March 2010.

As of 6 February 2011, there are 62 States that are parties to the Hague Service Convention. A list of these countries and the dates they ratified the Convention are set out in Annexure A to this paper.

Under Article 1 of the Service Convention, the Service Convention applies in all civil or commercial cases where there is an occasion to transmit a judicial or extrajudicial document for Service abroad, except where the address for service is not known.

Under the Convention, each contracting state is required to designate a "Central Authority" to accept incoming requests for service. (See Article 2.) In Australia, the Commonwealth Attorney General's Department serves as the Central Authority.

Pursuant to Article 3, a Central Authority shall forward a document annexed to a request in what is described as the "model form" to a Central Authority in the addressee State. The Central Authority in the addressee State shall either itself serve or arrange to have the document to be served by a method prescribed by its internal law, or by a particular method requested by the applicant, unless such a method is incompatible with the law of the addressee State (Article 5). Once service is effected, the central authority in the addressee

P a g e | 2 State must complete the certificate in the model form to be forwarded directly to the applicant (Article 6).

In response to the ratification by Australia of the Service Convention, the Family Law Regulations 1984 were amended last year to insert a new Part IIAB of those Regulations. The new Regulations, being 21 AC - 21 AN (inclusive), set out the procedure to be followed when one wishes to arrange for the service of documents pursuant to the Convention.

In short compass, there are the following procedures:

1. A person may apply to the Registrar of the Family Court for a request to have what is

described as a "local judicial document" (defined as a judicial document that relates to civil proceedings in the court) served in another Convention country.

The application must be accompanied by three copies of each of the following:

1.1 A draft request for Service abroad in accordance with Part 1 of Form 1A in

Schedule 1 of the Regulations; 1.2 The document or documents to be served; 1.3 A summary of the document(s) to be served (which must be in accordance

with Form 1B in Schedule 1 of the Regulations); and 1.4 If necessary, and if required under Article 5 of the Hague Service Convention,

a translation of the document into the official language of the receiving country.

(As to all this, see Regulation 21AF)

2. An undertaking must also be given pursuant to Regulation 21AF by the applicant or his or her lawyer to be personally liable for all costs that are incurred by the employment of the person who served the documents and to pay those costs.

3. Pursuant to Regulation 21AG, if the Registrar is satisfied as to the above, the Registrar must sign the request for Service abroad and forward two copies of the relevant documents to the receiving country. This will normally be the Central Authority of the receiving country. The applicant does, however, have the option to nominate a particular method of service and does have the ability to request documents be forwarded to a nominated additional authority in a Convention country who is receiving the documents. (An example of "an additional authority" could be a Court or another Government department or a Consular Office in a receiving country.)

If service is then effected, a certificate of service pursuant to Regulation 21AJ is, in the absence of any evidence to the contrary, sufficient proof that service of the document was effected under methods specified in the certificate. Alternatively, if a particular method of service was requested by the applicant, and service occurred in accordance with that method, the certificate is proof that that method is compatible with the law in force in the Convention country in which service was effected.

P a g e | 3 Once this is complied with and further steps can be taken to potentially obtain default judgment if an initiating process is so served and the other party does not respond within the required time (See Regulations 21AK - 21AM (inclusive)).

I add briefly in this context that the Regulations have also been amended to include a new Part IIAC and to introduce Regulations 21AO - 21AS (inclusive) which refer to service of documents in countries which are parties to Conventions other than the Hague Service Convention. In this regard, Australia is a party to bilateral treaties (which cover issues of service) with both Thailand and South Korea (although please note that South Korea has also ratified the Hague Service Convention). In addition, Australia was a party to various bilateral service conventions with various European nations, following the extension of a convention between Australia and the United Kingdom. Many of these nations are already parties to the Hague Service Convention. It is worth noting, however, that these conventions were concluded during the 1920s and 1930s, and most such European nations extended these conventions to include their external territories. Although most of these territories are now independent states, in many instances the conventions continue to be in force within these states. Principally, these independent states are nations within Africa and, to a lesser extent, within the Middle East and Asia. I refer readers to the Commonwealth Attorney-General's website at www.ag.gov.au/pil for further details.

When there is no relevant Convention between Australia and the nation concerned, reference should be made to Part 7.6 of the Family Law Rules 2004. Rule 7.19 permits a person to serve the document in a non-Convention country in accordance with the law of the non Convention country or, if that country so permits. through the diplomatic channel. To effect service through the diplomatic channel, a request must be made to the Registry Manager to so arrange service. The Registrar may then, if satisfied, seal the documents to be served and arrange service through the Department of Foreign Affairs and Trade. If that is done, and an official certificate or declaration, stating that the document has been personally served, is sent to the Court by the Government or Court of the other country, that certificate or declaration is proof of service and has effect as if it was an affidavit of service. (See Rule 7.20).

The primary purpose today of this aspect of my presentation, however, is to draw attention to the new provisions of the Hague Service Convention.

In addition to the provisions of the Hague Service Convention referred to above, it is worth drawing attention to the following Articles:

1. Article 8 - Which permits the signatories to serve the other party through using their

own diplomatic or consular agents. 2. Article 9 - Which permits signatories to use agents to forward judicial documents to

designated authorities in the receiving country to undertake service. 3. Article 10 - Which, among other things, permits signatories to send judicial

documents by post directly to the person to be served in the receiving country.

P a g e | 4 4. Article 11 - Which permits signatories to agree to channels of transmissions other

than those provided for in the Convention such as bilateral agreements. 5. Article 19 - Which permits service of judicial documents on a foreign defendant within

the receiving nation by any method of transmission permitted under the receiving nation's internal laws; and, importantly

6. Article 21 - Which grants the right to signatory countries to oppose use and methods

of transmission such as those prepared for in Articles 8 and 10 (for example via postal channels).

In short, although various countries including Australia may both be signatories of the Hague Service Convention, they may permit service in each other's countries by informal means such as engaging a local agent or process server.

Service through a private agent for example is permitted in both the United States and the United Kingdom.

Given what I am about to refer to therefore I strongly urge anyone who is about to serve an application or other documents overseas to ascertain what the position is in any particular receiving country from the Australian Government Attorney General's website. This can be found at www.ag.gov.au/pil. The website contains a helpful list of fact sheets in relation to the position applicable in many countries throughout the world. Having said that, however, when I have been in recent telephone communications with the Department, employees have advised me that these fact sheets are gradually being updated. Thus, it would also be prudent to telephone the Department and check if the situation has recently altered in relation to the country in question. It would also be prudent to contact a lawyer practising in the country where service is to be effected.

I particularly urge the foregoing as failure to follow the procedures of the Convention, or to attempt to serve for a more informal means in a Convention country (where that country has not permitted service from such informal means), can result in the following:

1. Dismissal of the application; and 2. An application, even many years later, to set aside default Judgment which might

have been obtained following informal service.

This has been starkly demonstrated through a decision in New Jersey of Shenouda v Mehanna & Said, 203 F.R.D. 166 [D.N.J. 2001], being a decision of U.S. District Court Judge Politan.

In that case, the plaintiff filed a complaint against defendants in Egypt.

The plaintiff through his local Egyptian lawyer attempted to serve the defendants with the summons and complaint. These documents were forwarded to a small claims court process server to effect service on the defendants.

Personal service was attempted on the defendant Said but was unsuccessful. After this one attempt at personal service failed the process server allegedly mailed it by certified mail. The defendant Said asserted that she was never properly served.

P a g e | 5 The plaintiff conceded that the defendants were not served under the Hague Service Convention.

Ultimately, neither defendant filed an answer nor an appearance to the proceedings and default Judgment was entered into in favour of the plaintiff on 18 September 1996.

The plaintiff then attempted to enforce the Judgment in Egypt. When the plaintiff attempted to do so the defendant Said filed a motion in New Jersey to vacate the default Judgment and dismiss the complaint in New Jersey. This application was made five years later in 2001.

The Court made the following findings:

1. There was no time limitation to file a motion to vacate a default Judgment based on

lack of jurisdiction because "a void judgment is no judgment at all"; and 2. When a destination country is a signatory to the Convention, the Convention's

procedures are the exclusive means by which service of process needed to be effected in that country. Failure to apply with the Convention voids the attempt at service.

It is true as I have noted above that the Hague Convention offers signatories a variety of additional methods for service as an alternative to forwarding documents through the Central Authority. The Court however discussed these alternative methods. They concluded that Egypt had either objected to the alternative methods (for example direct service by post) or the method did not apply.

In consequence, the Court vacated the default Judgment and dismissed the plaintiff's complaint for improper service.

In doing so, the Court also quoted the comments of the U.S. Supreme Court in the case of Volkswagenwerk Aktiengesellschaft v Schlunk, 486 U.S. 694 (1988) where the Court said: "The Convention provides for some certain means by which to serve process on a foreign national... parties that comply with the Convention may find it easier to enforce their Judgments abroad. For these reasons we anticipate that parties may resort to the Convention voluntarily even in cases that fall outside the scope of its mandatory application".

I myself might not go so far as the U.S. Supreme Court did in this quote. If satisfied that the Convention country will accept service save for more informal means then that ought to be able to be safely attempted. The U.S. Supreme Court however, in this decision, does illustrate however that compliance with the procedure of the Convention is certainly the safest method.

The final note I wish to mention on this topic is the following.

I cannot find any corresponding provisions in the Federal Magistrates Regulations 2000 or the Federal Magistrate Court Rules 2001 to those contained in the Family Law Regulations and Family Law Rules which are designed to give effect to the Hague Service Convention.

Rule 1.05 of the Federal Magistrates Court Rules 2001 does permit the Family Law Rules to be applied in any case whereby the Federal Magistrates Court Rules are "... insufficient or inappropriate...". There is no reference however to the ability to apply the Family Law Regulations.

P a g e | 6

In many cases having an "international" element, the matter by reason of its additional complexity may well be before the Family Court in any event. If not:

1. One ought to check whether service through the Central Authority or an additional

authority, as defined, in relation to the particular country which is a signatory to the Hague Service Convention is mandatory;

2. If it is not mandatory, then the fact that the matter proceeds in the Federal

Magistrates Court may not be an issue; and 3. If mandatory, or alternatively, an application could be made in the Federal

Magistrates Court for service through the Central Authorities of the two nations. It is noted that Rule 6.04 of the Federal Magistrates Court Rules 2001 does not preclude the power of the Court to authorise service of a document not provided for in that Part of the Rules.

2. TAKING EVIDENCE ABROAD

In many family law proceedings in Australia, there may also be matrimonial property overseas. This property may be controlled by the other party.

In such cases it may be necessary to obtain injunctive relief against the other party. That may of course involve judgment calls as to whether the matrimonial assets in Australia are sufficient to meet one's client's reasonable expectations.

In many cases, however, the value of the overseas properties is simply unknown or it could be that it represents a very significant portion of the matrimonial asset pool. Particularly therefore if the other party does not provide an appropriate undertaking to the Court to you, an application for an injunction may of course need to be sought to prevent the other party dealing with that property (see for example Mullen & De Bry (2006) FLC 93-293).

In appropriate cases, also, it may be necessary to seek an order precluding the other party from leaving Australia and to deliver their passports to the Court. See for example in this regard the report of the decision of Guest J in Restein v Restein (unreported, 4 July 2003).

Generally, the Full Court has accepted that the Court does have power to restrain freedom of international movement in financial cases (see Brown v Brown (2007) FLC 93-316).

Consideration should also be given to seeking an order that the other party provide you or your client with an authority to make such enquiries as may be necessary with overseas agencies (for example banks, accountants, lawyers, overseas superannuation funds, international employers and international Government departments) permitting those external agencies to provide you and the client such information as you may need to inform yourself of the other party's overseas assets or financial resources.

In some circumstances, however, all of these methods may be inadequate for any or more of the following reasons:

1. The interest of the other party overseas is, for example, a minority interest in a

company overseas or a beneficial interest in a trust which is not necessarily

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controllable by the other party. Those who do control it may be unwilling to provide the information sought; and

2. Even when the above situation does not apply, the external agency or body either

refuses, neglects or fails to answer your queries adequately. Consideration should then be given to having the appropriate individual overseas (who has information about the assets or resources of the other party), provide evidence about these pursuant to either one and/or both of the following methods:

(a) The Convention on Taking of Evidence Abroad in Civil or Commercial Matters of

1970 (herein after referred to as "the Hague Evidence Convention"); or

(b) The provisions of the Foreign Evidence Act 1994 (Clth);

In relation to the first of these methods, Australia ratified the Hague Evidence Convention on 23 October 1992. As at 22 February 2009 there were 47 States which were parties to the Hague Evidence Convention. A list of these parties and the date they ratified the Convention is set out in Annexure B.

Some of the key provisions of the Hague Evidence Convention are the following:

1. Each contracting State is to designate a Central Authority to receive letters of request

coming from a judicial authority of other contracting State and transmit them to an authority competent to execute them. (See Article 2). In Australia, the Central Authority is the Commonwealth Attorney General's Department.

2. Article 3 provides that a letter of request shall specify, among other things:

2.1 The authority requesting its execution and the authority requested to execute

it, if known; 2.2 Names and addresses of the parties and their representatives; 2.3 The nature of the proceedings for which the evidence is required; 2.4 The evidence to be obtained or judicial act to be performed; 2.5 Names and addresses for any persons such as witnesses to be examined; 2.6 Questions to be put to the persons to be examined or a statement of the

subject matter about which they are to be examined; 2.7 The documents or other property real or personal to be inspected; 2.8 Any requirement that the evidence be given by oath or affirmation; 2.9 Any special method or procedure requested to be followed in relation to the

obtaining of evidence. Pursuant to Article 11, the person concerned who is named may refuse to give evidence insofar as he or she has a privilege or duty to refuse to under the law of the

P a g e | 8

State of execution or under the law of the State of origin if that privilege or duty is specified in the letter of request. Pursuant to Article 12, the execution of the letter of request may only be refused to the extent that:

1. In the State of execution, the execution of the letter does not fall within the functions of the Judiciary; or

2. The State of execution considers that its sovereignty or security would be prejudiced

by execution.

3. In this regard, I have had occasion to prepare a letter of request to be used in an international jurisdiction. In such a case, I was fortunate enough to have a contact in the other country's Central Authority to speak to them about the draft document. In doing so it became apparent that although not strictly referred to in the wording of Convention, one should be mindful about the following:

3.1 The letter of request should be not used as a "fishing expedition". One needs

to provide in a supporting affidavit reasonable evidence that the person who is sought to give the evidence has the documents sought or ought to reasonably be able to give evidence about the matters; and

3.2 In drafting requests which seeks production of documents therefore should be

precise and seek documents which are proportional to what is required; 3.3 One should also address the letter to the person who is best able to comply

with it. For example, if seeking documents regarding an international company, one should direct the request to the secretary of the company. It may be that another individual (such as a lawyer or accountant of that company) might also have the documents, but that person is not the most appropriate person to receive the letter of request.

With reference back therefore to Article 12, therefore, one could say that it does not fall within the functions of the Judiciary of the receiving State to assist in the carrying out of fishing expeditions or to implement requests which otherwise breach the best evidence rule. In short therefore an application pursuant to the Convention would involve an application to the Court attaching a draft letter of request, and requesting that the Court approves same and transmits it to the Commonwealth Attorney General's Department in order to be on-forwarded to the relevant Central Authority in a contracting State. That Central Authority would then bring proceedings in the appropriate Court in the contracting State in order for evidence to be taken. I also mentioned above the procedures and provisions of the Foreign Evidence Act 1994. There is no reference specifically in the Foreign Evidence Act to this legislation being an attempt to specifically implement the terms of the Hague Evidence Convention. Its terms, however, do set out an alternative and some might say a complementary, means of obtaining evidence to that set out in the Hague Evidence Convention.

P a g e | 9 The key provision in this regard is Section 7, the text of which is set out as follows:

"FOREIGN EVIDENCE ACT 1994 - SECT 7 Orders for taking evidence abroad (1) In any proceeding before a superior court, the court may, if it appears in the interests of

justice to do so, on the application of a party to the proceeding, make an order, relating to a person outside Australia:

(a) for examination of the person on oath or affirmation at any place outside Australia

before a judge of the court, an officer of the court or such other person as the court may appoint; or

(b) for issue of a commission for examination of the person on oath or affirmation at any

place outside Australia; or (c) for issue of a letter of request to the judicial authorities of a foreign country to take

the evidence of the person or cause it to be taken.

(2) In deciding whether it is in the interests of justice to make such an order, the matters to which the court is to have regard include the following:

(a) whether the person is willing or able to come to Australia to give evidence in the

proceeding; (b) whether the person will be able to give evidence material to any issue to be tried in

the proceeding; (c) whether, having regard to the interests of the parties to the proceeding, justice will

be better served by granting or refusing the order."

In relation to Section 7 the reference to "a superior court" is defined to include the Family Court of Australia in the definitions section of Section 3. With respect to proceedings in the Federal Magistrates Court it is worth having regard to the provisions of Section 9A the text of which is as follows:

"FOREIGN EVIDENCE ACT 1994 - SECT 9A

Orders for taking evidence abroad--Federal Magistrates Court

Child support or family law matters

(1) The Family Court of Australia may, on the application of a party to a proceeding before the Federal Magistrates Court in a child support or family law matter, exercise the same power to make an order of the kind referred to in Division 1 as the Family Court of Australia has under that Division for the purpose of a proceeding in the Family Court of Australia.

P a g e | 10 Matters other than child support or family law matters

(2) The Federal Court of Australia may, on the application of a party to a proceeding before

the Federal Magistrates Court in a matter other than a child support or family law matter, exercise the same power to make an order of the kind referred to in Division 1 as the Federal Court of Australia has under that Division for the purpose of a proceeding in the Federal Court of Australia.

Definition (3) In this section: "child support or family law matter" means:

(a) a matter arising under the Family Law Act 1975 or regulations under that Act; or (b) a matter arising under the Child Support (Assessment) Act 1989 or regulations

under that Act; or (c) a matter arising under the Child Support (Registration and Collection) Act 1988 or

regulations under that Act." You can see from this that, for our purposes, if one has a child support or family law matter in the Federal Magistrates Court, an application can be made to the Family Court of Australia (despite the fact that there are proceedings in the Federal Magistrates Court), requesting that Court to make an order of a kind referred to in Division 1 (which includes Section 7). The application would seek that an order be made by the Family Court of Australia for the taking of evidence abroad just as the Family Court might do if the proceedings were before the Family Court of Australia. It is important also to note the provisions of Subsection 7(2) that all of the matters referred to in this subsection will need to be established when making an application, namely: 1. whether the person is willing or able to come to Australia to give evidence in the

proceedings; 2. whether the person will be able to give evidence material to any issue to be tried; and 3. whether having regard to the interests of the parties of the proceeding, justice would

be better served by granting or refusing the order. The importance of establishing each of these matters is reinforced by a decision in the NSW Supreme Court in ASIC v Rich [2004] NSWSC 467 (31 May 2004), being the decision of Justice Austin. In relation to the matter referred to in subparagraph 7(2) (a) in that particular case, ASIC was making an application for evidence to be taken from two witnesses in the United Kingdom. It had contacted the relevant witnesses in the United Kingdom, invited them to come to Australia and offered to pay their expenses to do so. Neither witness had made a firm commitment to do so, notwithstanding these offers, although they indicated they may well be willing to give evidence by video link. Justice Austin commented that the evidence fell short of establishing that the witnesses were unable to come to Australia to give evidence. His Honour noted, however, that he was only

P a g e | 11 required to consider whether they were willing to do so on the balance of probabilities, and on the basis of the evidence before him was prepared to reach this conclusion. It would be prudent therefore when making an application either under the Hague Service Convention or the Foreign Evidence Act to do the following:

1. Contact the intended witness overseas to see if he or she will cooperate; 2. If appropriate, directly request the witness to come to Australia to give evidence (and

depending upon the funds that your client, possibly even offer to pay for the expense);

3. Notify them of the intended application if he or she is unwilling; and 4. In the interests of caution serve him with a copy of an application once filed; and 5. File an affidavit about all these communications with the Court Finally on this topic I refer back to the Part IIAB of the Family Law Regulations mentioned above with respect to the Hague Service Convention. As discussed these Regulations make reference to the service of what is described as a "local judicial document" of another Convention country. In theory, there would appear to be no reason why such documents could not include subpoenas. My concern about attempting to use the Regulations for serving subpoena however, is that there appears at present to be no ability to enforce the subpoena upon the recipient of another country, nor is there mention of any consequences that would follow if that person does not do so. Arguably, the most that our Courts could do would be to issue a warrant for the arrest of the witness, which would be executed only if the witness came to Australia. That would be of little practical utility, however, if the witness never does so. The situation may however be different in the near future in relation to New Zealand for reasons to which I will now refer. 3. TRANS-TASMAN PROCEEDINGS ACT 2010 For those who have or expect to have proceedings where the other party or matrimonial assets are in New Zealand, it is imperative to have regard to the Trans-Tasman Proceedings Act 2010 (hereinafter referred to as "the Trans-Tasman Act"). The Trans-Tasman Act was passed on 13 April 2010. As stated in Section 3, its purpose is, among other things, to implement the Trans-Tasman Agreement between the two Governments as to Trans-Tasman proceedings and regulatory enforcement (entered into in Christchurch on 24 July 2008), to streamline the process in resolving civil proceedings with a Trans-Tasman element, and to reduce costs and improve efficiency. An equivalent Act has been passed in New Zealand which bears the same title. To a certain extent however despite the passage of the legislation it is still a case of "watch this space". Virtually all the provisions of the Act have not yet commenced operation. They will not yet do so until a date which is proclaimed.

P a g e | 12 In the meantime, the Act and the Agreement between the two countries giving rise to the Act are being scrutinised by both Parliaments. An Amending Act has been introduced in early March 2011 to the Commonwealth Parliament to make minor wording changes to the Trans-Tasman Act so as to ensure consistency of language between the two countries. Regulations also need to be drafted to give effect to the legislation. My recent telephone inquiry to the Commonwealth Attorney General's Department indicates this process is expected to be completed by about July 2011. The purpose of this aspect of the presentation is to highlight some key provisions in the new legislation.

SERVICE

Service in New Zealand of initiating applications issued in Australian Courts is dealt with in Sections 7-15 (inclusive). Section 7 makes it clear that this particular part of the Act relates to initiating documents in certain civil proceedings in Australian Courts. A "Civil proceeding" is defined in Section 4 as simply being " a proceeding that is not a criminal proceeding". It is important to be aware however that Section 8 (which is one section within Part 2 of the Trans-Tasman Act relating to service) does not apply to a civil proceeding which relates wholly or partly to what is called "an excluded matter". "An excluded matter" as referred to in this section is defined in Section 4 as meaning: (a) the dissolution of a marriage; or (b) the enforcement of:

(i) an obligation under Australian Law to maintain a spouse or defacto partner (within the meaning of the Acts Interpretation Act 1901); or

(ii) an obligation under New Zealand Law to maintain a spouse, a civil union

partner (within the meaning of the Civil Union Act 2004 of New Zealand) or defacto partner within the meaning of the Interpretation Act 1999 of New Zealand); or

(c) the enforcement of a child support obligation. Section 9 provides that an initiating document must be served in New Zealand in the same way as a document is required or permitted under the procedural Rules of the Australian Court or Tribunal to be served in the place of issue. It is not necessary for the Australian Court or Tribunal to grant leave for service. Then, pursuant to Section 10, service has the same effect, and gives rise to the same proceeding, as if the initiating document had been served in the place of issue. Pursuant to Section 11, however, an initiating document must be accompanied by information for the other party (described as the defendant) that is prescribed by the Regulations. (We will learn what that information is once the Regulations are in force).

P a g e | 13 Pursuant to Section 12, if Section 11 is not complied with, that in itself does not invalidate the proceeding or a step taken in the proceeding. An application however may be made by the defendant to the Australian Court to set aside either the proceeding or any step taken in relation to the proceeding.

SUBPOENAS

Part 5 of the Trans-Tasman Act (being Sections 28-45 inclusive) relate to subpoenas. Sections 29-39 (inclusive) refer to Australian subpoenas served in New Zealand and Sections 40-45 (inclusive) refer to New Zealand subpoenas being served in Australia. Section 29 makes it clear that particular Division of the Trans-Tasman Act (relating to Australian subpoenas) applies to a subpoena issued in the proceedings other than an excluded family proceeding. An "excluded family proceeding" is a proceeding which relates to an application under the Convention on the Civil Aspects of International Child Abduction, or a proceeding relating to the status or property or a person not fully able to manage his or her affairs. Section 31 makes it clear that a subpoena may only be served in New Zealand with the leave of the Australian Court (being defined as a federal Court or a Court of a State or Territory). In deciding whether leave will be granted to issue the subpoena, the Court must take into account the significance of the evidence to be given or document to be produced and whether the evidence, document or thing could be obtained by other means without significant greater expense and with less inconvenience to the person named in the subpoena. Leave to serve the subpoena may be issued with conditions. A subpoena, however, may not be served if the named person is less than 18 years of age. Section 32 provides that a subpoena must be served in New Zealand in the same way that the subpoena is required to be served under the procedural rules of the issuing Australian Court, and in accordance with any directions given by the Australian Court. A subpoena must be accompanied by a copy of the order granting leave and a notice in the form prescribe by the Regulations of the issuing Australian Court or Tribunal setting out the rights and obligations of the person named and information about how an application may be made to set aside the subpoena. Section 33 provides for the provision of allowance and travelling expenses sufficient to meet the person's reasonable expenses of complying with the subpoena. Section 34 provides that if the subpoena only requires production of a document or thing it must permit the person named to comply by producing the document or thing at any Registry of the High Court of New Zealand not less than 10 days before the date specified in the subpoena as the date on which the document or thing is required for production in the Court of issue. Sections 35 and 36 set out details of setting aside Australian subpoenas. Relevantly:

1. Under Section 35 the Court must set aside the subpoena if the person does not have

the necessary travel documents to come to Australia; or 2. If the person was to comply and come to Australia he or she will be liable to be

detained for the purposes of serving a sentence; or

P a g e | 14 3. If the person is liable to a prosecution, or is being prosecuted, for an offence in

Australia, or is liable to the imposition of a civil penalty; or 4. The Court is satisfied that the person is subject to a restriction on his or her

movements which is inconsistent with the person complying with the subpoena.

There is also a discretion to set the subpoena aside if the evidence can then be obtained satisfactorily by other means without significant greater expense or, compliance with the subpoena would cause the person hardship or serious inconvenience. In the case of a subpoena for production, there is also a discretion to set the subpoena aside if:

(a) The document or thing should not be taken out of New Zealand; and (b) Satisfactory evidence of the contents of the document or thing can be given by other

means. Section 37 entitles the person named to an amount to be paid an amount equal to reasonable expenses for compliance. Section 38 provides that if the person named in the subpoena fails to comply that the Australian Court or Tribunal may issue a certificate stating that:

(a) leave to serve the subpoena was given by an Australian Court; and (b) the person named failed to comply with the subpoena.

When originally reading this section, it concerned me that there appeared to be no other sanctions for failure to comply but for the issue of the certificate. Section 39, however, provides that this division does not affect any other powers in an Australian Court or Tribunal. It would seem therefore that an Australian Court could issue a warrant for the arrest of the person named, enforceable if that person ever travelled to Australia. In addition, the Court could fine the person named for failing to comply with a subpoena, and that could be a judgment enforced in New Zealand. In addition or in the alternative:

1. Part 4 of the Act (being Sections 24 - 27 inclusive) provides for the ability to apply to

an Australian Court for interim relief in support of proceedings in New Zealand; 2. There are corresponding provisions in Sections 30-33 (inclusive) of the New Zealand

Act. It is clear however that the New Zealand Act does not permit interim relief in the form of discovery but the interim relief could be relief sought that the person named in the subpoena be subject to a penalty in New Zealand.

P a g e | 15 OTHER MATTERS Legislative amendment clarifying the foregoing however would be welcome failing enforcement.

There are numerous other provisions of the Trans-Tasman Act which are too detailed to go into here. Some key additional provisions however are the following which relate to enforcement (contained within Part 7 of the Act). Section 66 defines registrable New Zealand Judgments. These include judgments which are final and conclusive judgments given in civil proceedings by a New Zealand Court. Application may now be made to register these in Australia under Section 68. Application may be made under Section 72 to set aside that registration but only if the Court under certain conditions including:

(a) Enforcement of the judgment would be contrary to public policy in Australia; (b) The judgment was registered in contravention of the Act; (c) The judgment relates to property which is or was not situated in New Zealand.

It is not possible, however, to register a judgment which relates, wholly or partly, to an "excluded matter", (being, as mentioned above, applications for divorce, and spousal or de facto maintenance and child support proceedings). It is also not possible to register an order which relates to the care, control or welfare of a child. There are equivalent provisions in the New Zealand Legislation (see for example Sections 54, 56 and 61 of the New Zealand Act). This is an important development. It has long been difficult to enforce overseas judgments in Australia owing to matrimonial matters being excluded by virtue of section 3 of the Foreign Judgments Act 1991. It appears at last, at least in relation to New Zealand, the situation is changing. FORUM DISPUTES As we probably all know, the test forum disputes under Australian case law has been that Australia is a "clearly inappropriate forum". It appears however that this is about to change in relation to New Zealand. Under Part 3 of the Trans-Tasman Act (being Sections 16-23 inclusive), Australian Courts may now decline jurisdiction on the grounds that a New Zealand Court if they are "a more appropriate forum". This is in effect the English test, and is a less onerous test for the parties to satisfy who is opposing the exercise of Australian jurisdiction. Under Section 19 of the Trans-Tasman Act, when determining whether New Zealand is the more appropriate Court, the Australian Court must determine various matters including the places and residence of the parties, places of residence of witnesses, the place where the subject matter of the proceedings are situated and the financial circumstances of the parties among others.

P a g e | 16 It is however important to consider Section 20 of the Trans-Tasman Act. This section makes it clear that in such forum disputes an Australian Court: (a) Must stay the proceedings if satisfied that "an exclusive choice of Court agreement"

designates a New Zealand Court as the Court to determine the matters in dispute; and

(b) Must not stay the proceedings if satisfied that it is "an exclusive choice of Court agreement" designates an Australian Court as the Court to determine those matters.

Under Subsection 20(3) an exclusive choice of Court agreement is essentially a written agreement between the parties. Such an agreement that designates the Court or a specified Court or Courts of a specified country, to the exclusion of any other Courts, as a Court or Courts to determine disputes between those parties that are or include those matters. Such an agreement must not be an agreement the parties to which are or include an individual acting primarily for the personal, family or household purposes, and is not a contract of employment. There are restrictions to such agreements under Subsection 20 (2). Such agreements do not apply if an Australian Court is satisfied that:

(a) It is null and void under New Zealand Law (including the rules of private international

law); or (b) A party to the agreement lacked the capacity to conclude it under Australian Law; or (c) Giving effect to it would lead to a manifest injustice or be manifestly contrary to

Australian public policy; or (d) For exceptional reasons beyond the control of the parties it cannot reasonably be

performed; or (e) The Court designated by it as the Court to determine the matters in dispute between

the parties to the proceedings has decided not to determine those matters.

The amending legislation currently before the Commonwealth Parliament proposes inserting a new subparagraph 2(A) to Section 20 making it clear that an exclusive choice of Court agreement will not apply if the Australian Court is satisfied that it is null and void under Australian Law (including the laws of private international law). It would appear therefore that parties who have entered into a binding financial agreement which, among other things, specifies that Australia and Australian Courts are to be the only Courts and the only forum in which any dispute between them will be heard, have signed such an exclusive choice of Court agreement. Parallel situations will apply to those who have signed such an agreement under New Zealand Law. In this regard, the affect of these amendments may be to alter the effect the decision of Justice O'Ryan in Steen v Black (2000) FLC 93-005. In that case, the parties had lived part of their marriage in Australia and part in New Zealand. They were in New Zealand at the time of separation. After separation they signed an agreement which complied with the provisions of the Matrimonial Property Act 1976 (NZ).

P a g e | 17 The parties subsequently moved to Australia. The wife commenced proceedings under the Family Law Act for property settlement. The husband unsuccessfully sought dismissal of the wife's application. Among other things he argued res judicata and action estoppel.

Justice O'Ryan held that an order of the Court, even if made by consent, would amount to a disposition or determination of substantive proceedings between parties which could give rise to res judicata. It cannot arise however from an agreement between the parties as there was no judicial pronouncement of any kind. It would appear however that assuming the agreement validly complies with New Zealand Law, that conclusion will no longer be reached once the substantive provisions of the Trans-Tasman Act commence operation. It could also be argued that even if a binding financial agreement was set aside, its terms, insofar as it constitutes a choice of forum, may be upheld.

CONCLUSION

It is well beyond the scope of this paper to canvass and cover all procedural and practical issues which arise when one is conducting a case with another party or property overseas, or which otherwise has an "international element". I trust, however, that the foregoing will be of assistance to practitioners when they encounter these situations in future. _________________________________________________________________________ John Spender is an Associate with Kennedy Partners Lawyers, Melbourne and an accredited specialist in Family Law. Other papers by John and the Kennedy Partners team can be found at www.kennedypartnerslawyers.com.au.

P a g e | 18

ANNEXURE A HAGUE SERVICE CONVENTION

STATE DATE OF RATIFICATION

Albania 1 November 2006

Antigua and Barbuda 1 May 1985

Argentina 2 February 2001

Australia 15 March 2010

Bahamas 17 June 1997

Barbados 10 February 1969

Belarus 6 June 1997

Belgium 19 November 1970

Bosnia and Herzegovina 16 June 2008

Belize 8 November 2009

Botswana 10 February 1969

Bulgaria 23 November 1999

Canada 26 September 1988

China, Peoples Republic of 6 May 1991

Croatia 28 February 2006

Cyprus 26 October 1982

Czech Republic 23 September 1981

Denmark 2 August 1969

Egypt 12 December 1968

Estonia 2 February 1996

Finland 11 November 1969

France 3 July 1972

Germany 27 April 1979

Greece 20 July 1983

Hungary 13 July 2004

Iceland 10 November 2008

India 23 November 2006

Ireland 5 April 1994

Israel 14 August 1972

Italy 25 November 1981

Japan 28 May 1970

Korea, Republic of 13 January 2000

Kuwait 8 May 2002

Latvia 28 March 1995

Lithuania 2 August 2000

Luxembourg 9 July 1975

P a g e | 19

STATE DATE OF RATIFICATION

Macedonia, The former Yugoslav Republic of 23 December 2008

Malawi 24 April 1972

Mexico 2 November 1999

Monaco 1 March 2007

Kingdom of the Netherlands (European territory and Aruba) 3 November 1975

Norway 2 August 1969

Pakistan 7 December 1988

Poland 13 February 1996

Portugal 27 December 1973

Romania 21 August 2003

Russian Federation 1 May 2001

Saint Vincent and the Grenadines 6 January 2005

San Marino 15 April 2002

Serbia 2 July 2010

Seychelles 18 November 1980

Slovakia 23 November 1981

Slovenia 18 September 2000

Spain 4 June 1987

Sri Lanka 31 August 2000

Sweden 2 August 1969

Switzerland 2 November 1994

Turkey 28 February 1972

Ukraine 1 February 2001

United Kingdom of Great Britain and Northern Ireland 17 November 1967

United States of America 24 August 1967

Venezuela 29 October 1993

P a g e | 20

ANNEXURE B HAGUE EVIDENCE CONVENTION

STATE DATE OF RATIFICATION

Argentina 8 May 1987

Australia 23 October 1992

Barbados 5 March 1981

Belarus 7 August 2001

Bosnia and Herzegovina 16 June 2008

Bulgaria 23 November 1999

China, People's Republic of 8 December 1997

Cyprus 13 January 1983

Czech Republic 6 February 1976

Denmark 18 April 1972

Estonia 2 February 1996

Finland 9 March 1976

France 24 August 1972

Germany 18 March 1970

Greece 18 January 2005

Hungary 13 July 2004

Iceland 10 November 2008

India 7 February 2007

Israel 11 November 1977

Italy 6 February 1975

Kuwait 8 May 2002

Latvia 28 March 1995

Liechtenstein 12 November 2008

Lithuania 2 August 2000

Luxembourg 26 July 1977

Mexico 27 July 1989

Monaco 17 January 1986

Netherlands 8 April 1981

Norway 3 August 1972

Poland 13 February 1996

Portugal 18 March 1970

Romania 21 August 2003

Russian Federation 1 May 2001

Seychelles 7 January 2004

Singapore 27 October 1978

Slovakia 12 May 1976

P a g e | 21

STATE DATE OF RATIFICATION

Slovenia 18 November 2000

South Africa 8 July 1997

Spain 8 July 1997

Sri Lanka 30 October 2000

Sweden 21 April 1975

Switzerland 2 November 1994

Turkey 13 December 2000

Ukraine 1 February 2001

United Kingdom of Great Britain and Northern Ireland 18 March 1970

United States of America 27 July 1970

Venezuela 1 November 1993