What is the most appropriate Country for your Family Law Proceedings to be Determined where there is more than one choice

15/08/2017

Often at Watson & Watson we receive enquiries as to whether proceedings should be commenced or transferred to a Court within Australia to deal with Family Court issues.  We have had recent cases with alternative jurisdictions in America, New Zealand, India, Spain, France, Qatar and England.

We are experienced Family Law Solicitors who consider the aspects properly to ascertain the alternatives available and which alternative Country or Jurisdiction will provide the best outcome for you.

It is not uncommon for a divorce dispute or property dispute following the breakdown of a marriage or a breakdown of a de facto relationship to pan across various countries’ jurisdictions.  For example there may be assets owned in one country whilst either or both parties live in a different country and are then citizens of a third country.

It is critical to consider the matter at the earliest possible stage where more than one Country has the opportunity to deal with the case.

Usually the Family Court of Australia would prefer the disputes to be determined as far as possible in one jurisdiction rather than having part of the case dealt with in Australia and part of the case dealt with by a Court in another Country.

Accordingly it is critical that you take action to consider these matters at a very early stage.  At an early stage the issue might be determined by which party starts where first.

In circumstances where there is uncertainty as to which Court is best suited to settle the dispute, the questions to be considered by parties are:

(a)         Firstly, whether any of the Courts of each of the countries actually have jurisdiction; and

(b)         Secondly, if the Courts in more than one country has jurisdiction to hear and determine a dispute then which Court in which country is best suited to settle the dispute.

With regard to the first question, in each Country there are different rules concerning whether a Court holds jurisdiction and is able to hear and determine a dispute.  In Australia in deciding whether the Family Court of Australia has jurisdiction to hear the case the question for the Court to decide is whether the Family Court of Australia or Federal Circuit Court of Australia is “a clearly inappropriate forum”.  The High Court in Henry v Henry (1996) decided that these principles namely “forum non conveniens” apply in determining whether the Family Court of Australia or the Federal Circuit Court of Australia is the appropriate Court and has jurisdiction to determine family law proceedings in Australia.

Forum non conveniens’ is the test of clearly inappropriate forum. Is the forum in question, in this case, the Family Court of Australia, a clearly inappropriate forum? The answer to this multifaceted question can determine whether a court has competent jurisdiction.

As set out in Henry v Henry, The test of “clearly inappropriate forum” is to determine whether hearing the proceedings in the proposed forum would be oppressive or vexatious.

The Joint Judgment of Dawson, Gaudron, McHugh and Gummow JJ in the High Court of Australia defined:

“Oppressive” in the sense of seriously and unfairly burdensome, prejudicial or     damaging”; and

“Vexatious” in the sense of productive of serious and unjustified trouble and harassment

Henry v Henry also provides that in looking at whether the Family Court of Australia is a clearly inappropriate forum, there should be a balanced regard for the general circumstances of the case.

If the Australian Court is “not a clearly inappropriate forum”, the second question that must be considered is whether the Family Court of Australia is the appropriate Court to determine the issues between the parties.

The factors set out in Henry v Henry were neatly summarised by Cronin J in Desprez v Desprez [2015] in the Family Court of Australia, as follows:

(a) Whether if both courts have jurisdiction, each will recognise the other’s orders and decrees;

(b) Which forum can provide more effectively a complete resolution of the matters involved in the controversy;

(c) The order in which the proceedings were instituted and the stage and costs reached;

(d) The connection of the parties and their marriage with each of the requested jurisdictions;

(e) The issues surrounding the relief associated with those jurisdictions; and

(f)   Whether having regard to their respective resources and their understanding of the language, the parties were able to participate in either of the jurisdictions on an equal footing.”

In the recent case of Kima v Kima [2017], the Family Court of Australia reiterated that the applicable test to determine whether proceedings should be heard in Australia is the “clearly inappropriate forum test” determined by whether such proceedings would be ‘vexatious’ or ‘oppressive’, along with regard to other factors for consideration, as initially set out in Henry v Henry.

Gill J provides that “each consideration must be directed toward the question of whether Australia is a clearly inappropriate forum, as to litigate here would cause injustice to one or more of the parties”.

In Kima v Kima, the wife asserted that the Australian Court would be clearly inappropriate to decide on property owned solely by her in India. The Family Court of Australia looked at the circumstances surrounding her case and dismissed her claim.

Even if there are Courts within two or more Countries that can deal with the matter it is important to properly consider what is the best outcome available for you and on what basis you should proceed with your case.

It is important for these considerations to be had as early as possible following separation or even before separation if circumstances are to arise which will result in a resolution following a breakdown of a marriage or the separation of a de facto relationship.

If you have any questions or wish to have a second opinion please contact Richard Watson or his Personal Assistant Shereen DaGloria to discuss your important matter.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 02 9221 6011.

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