Trans-Tasman Proceedings Act 2010

On 11 October 2013 the Trans-Tasman Proceedings Act 2010 came into force. The Act implements the bilateral agreement between the governments of Australia and New Zealand made at Christchurch on 24 July 2008 and New Zealand has enacted reciprocal legislation.

There are three major, and some consequential, aspects of this legislation.

If there are, or likely to be, court cases in two different jurisdictions in family law cases, our courts and overseas courts have rules about where the case should run. Australia applies the test of having to show that Australia is a clearly inappropriate forum to determine the case. Other countries have different rules.

New Zealand has a different rule. They have a two step approach. First, what are the factors that connect the case to the overseas country? Second, do those factors show that the overseas country is clearly more appropriate to hear the case? If so, then New Zealand will stop its own proceedings.

The new law between Australia and New Zealand means that neither country will use its own tests and both will use the test of which between Australia and New Zealand is the more appropriate forum.

Before the Act came into force, on 11 October 2013, each country also had a different test in relation to children's cases. There the test was the welfare of the child, in other words was it in the best interests of the child to run the case in Australia or New Zealand? It seems likely, though unclear, that this will continue to be the case even after the new legislation.

The new Act also makes other things a lot easier:

• Serving court applications that start in Australia, in New Zealand and vice versa;

• Allowing each court to grant interim orders in support of each other's proceedings;

• Making the service of subpoenas in each other's country easier;

• Allowing parties to appear by phone or video link in each other's proceedings more easily;

• Making enforcement of each other's judgments in some cases easier.