Australia: International family law - In which country should proceedings commence?

Last Updated: 23 April 2015

By Brett Hartley

In which country should I commence proceedings for children and property matters?

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 related matters.

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 party's case.

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 conducted in.

In deciding this question, the Court looks to many different factors, including, but not limited to:-

  1. Injustice to one or the other party;
  2. Expense and inconvenience to the parties in the competing countries;
  3. Legitimate advantages of litigating in another country to another party;
  4. Whether the Jurisdiction of that country has been invoked before by a party;
  5. What type of property exists in each country and what Orders can legitimately be made in each country and enforced, concerning that property;
  6. Where are the majority of the witnesses located;
  7. Are there any language barriers and if so, how will they be addressed.

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 children's issues.

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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