Enforcement of foreign child maintenance orders: Ku v Pittman – The Conflict of Laws in New Zealand: News and Comment

Enforcement of foreign child maintenance orders: Ku v Pittman

There are several different regimes in New Zealand that apply to the enforcement of overseas child maintenance. This means it is important to work out in each case which regime may be applicable.

There are:

the common law regime on enforcement of foreign judgments, which, in the context of maintenance, is limited to enforcement of arrears (and does not extend to enforcement of future periodic payments);
the Reciprocal Enforcement of Judgments Act 1934, applicable to senior court judgments from certain (mostly Commonwealth) countries, which provides for a process of registration but, in substance, is very similar to the common law regime;
s 172 of the Senior Courts Act, for the registration of judgments from any Commonwealth country that are not enforceable under the 1934 Act (including judgments from inferior courts);
the regime for reciprocal enforcement of maintenance orders between Commonwealth and designated countries, which provides for registration of foreign orders under s 136 of the Family Proceedings Act 1980 (FPA);
the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (concluded 23 November 2007, entered into force 1 January 2013, entry into force for New Zealand 1 November 2021); and
for Australian decisions on child support, the Agreement between the Government of Australia and the Government of New Zealand on Child and Spousal Maintenance 2117 UNTS 133 (concluded 12 April 2000, entered into force 1 July 2000), as given effect in Child Support (Reciprocal Agreement with Australia) Order 2000.

(The United Nations Convention for the Recovery of Maintenance Abroad 268 UNTS 3 (signed 20 June 1956, entered into force 25 May 1957) (UNCRAM), on the other hand, does not itself provide for the enforcement of maintenance decisions; rather, it provides for the transmission of applications for maintenance orders.)

In Ku v Pittman [2025] NZHC 3050, the High Court declined summary judgment to enforce payment for child maintenance pursuant to an order made by the District Court of Hong Kong. The order required the defendant to pay maintenance “until each [child] attains the age of 18 years or completes full time tertiary education (first undergraduate degree), whichever is later…”. There was an issue at what point one of the children had completed their tertiary education for the purposes of the order. The defendant maintained that he had already satisfied his obligations because, under the order, he was only required to pay child support for three years of tertiary study. The plaintiff’s position was that, properly interpreted, the order required the defendant to pay support for an additional two years, until the child had completed their double degree.

The plaintiff sought enforcement at common law. Under common law rules, a foreign judgment must be for a definite sum of money or one which can be calculated arithmetically; and it must be final and conclusive. Associate Judge Paulsen denied the application because, based on the available evidence, the order was not (a) sufficiently clear to satisfy the common law requirement that it be for a “definite sum of money” ([37]-[46]) and (b) final and conclusive, because the order appeared to be subject to review (at [47]-[53]).

There was no discussion in the judgment whether the order could be registered or enforced under another one of the regimes. The Hague Convention was not applicable because Hong Kong is not a signatory (see my earlier post, here, on the potentially transformative effect of the Convention). The 1934 Act extends to Hong Kong (see Reciprocal Enforcement of Judgments (Hong Kong) Order 1957 (SR 1957/263)) but was inapplicable because the order was an order from an inferior court. Neither was s 172 of the Senior Courts Act available because Hong Kong is not a Commonwealth country. However, Hong Kong is a designated country for the purposes of s 136 of the FPA so, in principle, registration under s 136 may have been available.

In this note, I consider:

the regime for registration of foreign child maintenance orders in the FPA;
the interrelationship between s 136 and the common law rules (whether s 136 excludes common law enforcement);
whether the Court’s reasons in Ku v Pittman for declining summary judgment would also stand in the way of registration of the order under s 136.

Section 136, FPA

The common law is ill-suited to the enforcement of maintenance orders. The main reason for this is that the common law requires orders to be final and conclusive and for a fixed amount; yet maintenance orders tend to involve periodic payments and are often subject to review to take account of changing circumstances. This means that, under common law, plaintiffs can only recover lump sum payments for maintenance arrears, and only if the foreign court does not have the power to vary the payments retrospectively (see Hook & Wass at [9.168]). Simply put, the common law rules do not accommodate the forward-looking and dynamic nature of maintenance orders.

New Zealand long ago recognised the importance of an effective cross-border regime for maintenance. In the early 20^th Century, there was a problem with men financially abandoning their families to work elsewhere in the British empire. The Destitute Persons Act 1910 provided for the enforcement of orders “made in any part of the Commonwealth of Australia, or elsewhere out of New Zealand”, following negotiation of reciprocal arrangements with the Australian states (see JD McClean Recognition of Family Judgments in the Commonwealth (Butterworths, London, 1983) at 117). At the Imperial Conference of 1911, New Zealand Prime Minister Ward proposed a resolution that “in order to relieve both wives and children and the poor relief burdens of the United Kingdom and her dependencies, reciprocal provisions should be made throughout the constituent parts of the Empire with respect to destitute and deserted persons” (“Minutes of Proceedings of the Imperial Conference, 1911” (Appendix to the Journals of the House of Representatives, 1911 Session I, A-04) at 206). The initiative eventually led to legislation for the reciprocal recognition and enforcement of maintenance orders made in other Commonwealth and designated countries.

This regime, with some changes, is still given effect in ss 135-143 of the FPA. It applies to maintenance orders from Hong Kong, which is a designated country by virtue of Family Proceedings (Designated Country) Notice 2002 (SR 2002/94).

The regime draws a distinction between final orders and provisional orders. This note is concerned only with final orders. Provisional orders are orders that are made on a provisional basis in the original court and that can then be confirmed in New Zealand, and vice versa.

Under s 136, a maintenance order that “has been made against any person by any court in a … designated country” may be registered in New Zealand by filing a certified copy of the order in the District Court in the prescribed manner. The term maintenance order is defined as “a subsisting order… for the payment by any person of a periodical sum of money towards the maintenance of a person whom the first-mentioned person is, according to the law in force in the place where the order is made, liable to maintain” (s 2, emphasis added). The fact that the order could not have been made in New Zealand is not a basis for refusing registration of the order (Steele v Steele [1993] NZFLR 282 (DC) at 284). The definition excludes orders for lump sum payments that are not orders “for the payment … of a periodical sum”.

Registration is not discretionary. It is an “administrative act” (see McClean at [5.07]). Thus, s 137 provides for the registration of an order to be set aside, but the specified circumstances are limited. An order must be set aside if the order is not one to which s 136 applies (s 137(a)). There are no jurisdictional requirements or defences (contrast s 6 of the Reciprocal Enforcement of Foreign Judgments Act 1934).

Section 141 clarifies that a registered order “shall remain an order of the court of the country in which the country was made”. However, the New Zealand court has the power to discharge, vary or suspend the registered order, and to remit or suspend arrears due under the order (s 142B). For the purposes of an application for variation, the order is treated “as if [it] had been made in New Zealand on the date when it was made outside New Zealand”. In the absence of statutory guidance as to the substantive principles to be applied to such an application, courts have relied on s 145C by analogy, which deals with applications for child maintenance from countries that are party to the United Nations Convention for the Recovery of Maintenance Abroad 268 UNTS 3 (signed 20 June 1956, entered into force 25 May 1957) (UNCRAM), following Judge Inglis’ approach in H v H FC New Plymouth FP 043/258/01, 28 May 2003. This Convention does not itself provide for the enforcement of maintenance decisions; rather, it provides for the transmission of applications for maintenance orders, and s 145C sets out the substantive principles for the determination of such applications.

Does 136 of the FPA exclude the common law?

The fact that the order was potentially registrable under s 136 raises the question of the relationship between s 136 and the common law. Does s 136 exclude the court’s common law jurisdiction of enforcement of arrears? Was the application for summary judgment in Ku bound to fail because the Court lacked jurisdiction to enforce the order under the common law?

In Eilenberg v Gutierrez [2017] NZCA 270, [2017] NZFLR 471, the Court of Appeal held that the common law was not excluded in cases falling within UNCRAM. As noted above, the purpose of UNCRAM is to assist applicants with obtaining orders from Convention countries by providing a mechanism for transmitting applications. It does not itself provide for the enforcement of foreign maintenance orders. In these circumstances, the Court of Appeal concluded that Parliament could not have intended to exclude the common law rules (see Jack Wass “The enforcement of foreign maintenance orders: what role for the common law?” [2017] NZLJ 410).

The case is less clear-cut for s 136 because, unlike UNCRAM, it is concerned with enforcement. There is also an argument that the court’s power in s 142B to discharge, vary or suspend the registered order acts as a safety net that does not exist at common law, and that Parliament would have intended the debtor to be able to rely on this safety net (and not be at the whim of the creditor’s decision to select the common law route instead). Thus, Jack Wass notes that “it would be open to construe pt 8 [of the FPA] as reflecting a Parliamentary intention that New Zealand courts should not lend their compulsive powers to the enforcement of foreign maintenance awards that have not been assessed [or cannot be assessed] according to New Zealand policy considerations by a New Zealand court” ([2017] NZLJ 410).

Jack Wass also points out, however, that the FPA does not include express words to exclude the court’s inherent jurisdiction to enforce foreign judgments (unlike the Reciprocal Enforcement of Judgments Act 1934, in s 8; cf also Moylan Assurance Consultants Pty Ltd v Hughes HC Auckland CP 951/89, 4 March 1991, where the Court held that a judgment creditor may elect to invoke s 172 or the common law).

Overall, the better view seems to be that s 136 (and its predecessor) was not intended to exclude the common law.

Originally, the statutory regime made the common law jurisdiction practically redundant because there was no longer a reason for creditors to rely on it. By the same token, there was no real reason for excluding it. The “safety net” in s 142B (to vary, discharge or suspend the order) was a relatively late addition to the regime.
The court’s power in s 142B facilitates the enforcement of orders that are intended to be reviewable to reflect a change in circumstances. A version of this section was originally introduced in 1963, as an amendment to the Destitute Persons Act, after courts had highlighted the inconvenience that may be caused by the absence of such powers (see Pilcher v Pilcher [1955] P 318 at 329; McGregor v McGregor [1957] NZLR 686; Re Carter (Deceased) [1968] NZLR 80). Thus, BD Inglis wrote in the NZLJ that the situation presented “difficulties of the gravest nature, not the least of which is that, apart from leaving New Zealand, there is absolutely nothing a defendant under an order registered here can do to relieve himself from the full burden of the order, however deserving may be his circumstances” (“Enforcement of Foreign Maintenance” (1956) 32 NZLJ 185 at 186). While proceedings for variation in the original court remained an option, they would also involve obvious disadvantages, and it was “very doubtful indeed” whether a variation by the original court of an order that has been registered “can have any effect whatever on the order as registered”.
To the extent that the power to vary applies to future periodic payments, it responded to a problem that could not arise under the common law rules, which only apply to arrears.
However, s 142B also allows for retrospective variation. Under the common law jurisdiction, orders have to be final and conclusive, which means they cannot be varied retrospectively (Harrop v Harrop [1920] 3 KB 386; Cartwright v Cartwright (No 2) [2002] EWCA Civ 931). It would be possible, therefore, for a court to vary an order under s 142B in relation to arrears that, under the law of the original court, could not have been varied retrospectively and that, on that basis, would have been enforceable in its entirety at common law. This means that a creditor seeking payment of arrears that are enforceable under the common law may be wise to opt for the common law route, so that the debtor cannot apply for a variation of the order in the New Zealand court.
Similar considerations apply to the power, also contained in s 142B, to remit arrears. This power may have already been available prior to the introduction of the forerunner to s 142B, on the basis that the remission of arrears forms part of the procedure of enforcement (and does not amount to a variation of the order): Pilcher v Pilcher (No 2) [1956] 1 WLR 298, but cf Re Carter (Deceased) [1968] NZLR 80). By contrast, there is no obvious mechanism for the remission of arrears that are enforceable as a debt at common law, which means, again, that a creditor may have an incentive to choose the common law route over registration.
Nevertheless, these potential inconsistencies between s 136 and the common law do not compel the conclusion that s 136 was meant to operate to the exclusion of the common law. A maintenance debtor would argue that they should not be deprived of the safety net of s 142B; but there is also a good argument that the maintenance creditor should be able to avail themselves of the common law to enforce a sum of money that, by definition, is not subject to variation (or remission) under the law of the original country. It is not unfair to enforce an obligation that continues to exist in the original country, in the form of a judgment that satisfies New Zealand common law rules for enforcement, including that the foreign court had jurisdiction to make the judgment and that it is not contrary to public policy.

Whether the order could have been registered under s 136

In Ku v Pittman, the order was an order from Hong Kong, which is a designated country for the purposes of s 136. The plaintiff sought to recover arrears due under the order. Such arrears would have fallen within the ambit of s 136 even though they were due before the date of registration (see Wedge v Wedge [1960] NZLR 373). The fact that the order could not have been made in the same terms under New Zealand law – for example, because the children might have been too told to qualify for child support towards the end of their degree – would not be a basis for refusing registration. The relevant definition of “maintenance order” does not include an age limit. It refers to maintenance that the defendant is liable to pay “according to the law in force in the place where the order is made” (see above).

The Hong Kong order was not enforceable on summary judgment because (a) it was unclear and (b) it appeared to be subject to review. The latter reason – that it was subject to review – would not stand in the way of registration under s 136, a key purpose of which is to provide for the registration of reviewable orders. This leaves the question whether the order would be registrable under s 136 despite being unclear. Here, the defendant argued that he had already satisfied his obligations because, for the purposes of the order, “full time tertiary education (first undergraduate degree)” meant the child’s first three years of study; while the plaintiff argued that the defendant had to support the child for the entire five years of the child’s double degree.

If the defendant had already met his obligations under the order, a New Zealand court would refuse registration because there would be no “subsisting” order within the meaning of s 136. There is no provision in the FPA to seek clarification of the order from the original court (cf Jansen v Jansen [2001] NZFLR 1014, in relation to a provisional order). Presumably, it is up to the person seeking to register the order to show that there is a subsisting order for the payment of maintenance. Rule 60 of the Family Proceedings Rules 1981 simply refers to registration of “a certified copy” of the order, but in practice, the registering party probably needs to obtain a certificate from the original court specifying the sum owing pursuant to the order (see r 61, Form FP 34). Unlike in other Commonwealth countries, the FPA does not refer to the use of official channels for the transmission of final orders (see McClean at [6.03]-[6.04]).

If, on the other hand, the New Zealand court accepts that there is a subsisting order, it would be required to register it. The respondent could then apply for a variation of the order, or for remission of arrears, under s 142B. The court would apply New Zealand law (in the form of the principles contained in s 145C), and the order is treated “as if [it] had been made in New Zealand on the date when it was made outside New Zealand” (see above).

This procedure gives rise to some tension, resulting from the combination of, on the one hand, enforcement of the final order as made under the original law with, on the other hand, variation (etc) under s 142B in accordance with New Zealand law as the lex fori. For example, under s 145C(1)(c), the maximum age for child maintenance is 20 years, but it is not clear whether this should be a relevant consideration in an application for variation or remission if, under the law of Hong Kong, there was an obligation to pay maintenance past the age of 20, considering that the order must be treated “as if [it] had been made in New Zealand”.

There is an argument that, when applying s 142B, the court should have regard to the law of the original court (cf Aqbal Singh and others “Report of the Law Reform Committee on Reciprocal Enforcement of Maintenance Orders” (Singapore Academy of Law, 2012) at [65]). It should proceed on the basis that the order was properly made, even if it does not accord with New Zealand law, and confine the application of New Zealand law to matters arising in the ongoing operation and enforcement of the order (for example, whether there was a change of circumstances that requires the order to be varied).