In which country should I commence proceedings for children and
In today's times, we are seeing a large number of cases
where families have been transient and lived in various different
countries throughout their relationship. Children may have been
born in Australia or in an overseas country and hold dual
citizenship. Parents themselves may hold dual citizenship and may
have both been born in different countries and/or resided in other
countries throughout their relationship. The couples may have
accumulated various different property interests in other countries
(other than Australia) throughout their relationship.
After separation, one of the most important and immediate
questions to be resolved is in which country (or Jurisdiction)
should proceedings be instituted in to resolve property and child
It is extremely important for parties in such situations to seek
immediate specialist's advice from an accredited family law
specialist on this issue. A wrong decision, such as filing in the
wrong country, may have severe ramification for that party and/or
their children throughout the proceedings.
There is no right or wrong answer, and in every case, it will
depend upon the competing country and the circumstances of each
Generally speaking, in property matters, the Law applied in
Australia is to ask the question, "Is Australia a clearly
inappropriate forum" for the property settlement
proceedings to be conducted.
In other words, there may be property both in Australia and in
an overseas country. If proceedings were to be filed in Australia,
then the Australian Court will assume Jurisdiction as long as it is
clearly not an inappropriate forum for the proceedings to be
In deciding this question, the Court looks to many different
factors, including, but not limited to:-
Injustice to one or the other party;
Expense and inconvenience to the parties in the competing
Legitimate advantages of litigating in another country to
Whether the Jurisdiction of that country has been invoked
before by a party;
What type of property exists in each country and what Orders
can legitimately be made in each country and enforced, concerning
Where are the majority of the witnesses located;
Are there any language barriers and if so, how will they be
There are many other factors that need to be looked at to
consider whether Australia is clearly an inappropriate forum.
If you are the party that files first in Australia, then you
have accepted the Jurisdiction and cannot resile from that
Jurisdiction being exercised.
When the other party files an Application for property
settlement in Australia and you are either overseas, or, you
believe an overseas country is the most appropriate forum to hear
your matter, then you should be applying for a permanent Stay of
the proceedings in Australia, rather than responding and being
involved in the proceedings. Effectively, one asks the Court in
Australia to determine, as a preliminary issue, whether it is
clearly an inappropriate forum or not.
In relation to children's issues, the Law is somewhat
different. Whilst the above factors may have some relevance in
determining the appropriate forum, the overriding test is the
welfare of the children.
In other words, if the Australian Court has Jurisdiction to make
an Order about a child (the Court will have that Jurisdiction in a
lot of cases, even if the child is overseas and one of the parents
is presently in Australia), then the test relates to considerations
centered around the welfare of the child and how that child's
welfare is best served when it comes to choosing between Australia
and any overseas forum to hear any parenting dispute.
Different considerations apply again, if both property and
children's issues are in dispute.
Family Law is certainly complex when it comes to deciding upon
the most appropriate forum.
We see many examples of parties who come to us once it is too
late. They have either improperly filed proceedings already in a
country, or they have failed to take immediate steps to determine
and protect the most appropriate forum for property and
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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