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Often when married spouses or de facto partners separate numerous issues will arise and in particular, if the parties are living in separate jurisdictions or have assets or interests in separate jurisdictions.
These matters can be subject to an order from either the Family Court of Australia or a Court in the other jurisdiction restraining one party from proceeding in their chosen jurisdiction.
In circumstances where there is uncertainty as to which Court is best suited to settle the dispute, the questions to be considered by parties and the Courts are:
With regard to the first question, in each country there are different rules concerning whether a Court holds jurisdiction to hear a dispute.
In Australia it was held by the High Court in the case of Henry v Henry that the principle of “forum non conveniens” should be applied to family law proceedings in Australia.
In the recent case of Kima v Kima , 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’, amongst other issues.
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.
If the Australian Court is not a clearly inappropriate forum, the circumstances of the case may determine which Court is best suited to settle the dispute.
In the case of Desprez v Desprez in the Family Court of Australia noted the factors included:
“(a) Whether if both courts have jurisdiction, will each 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 reached and costs incurred;
(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.”
The situation in a recent case of Underwood was that the wife had commenced proceedings in Illinois in the United States of America. The parties married in October 1993 and separated in January 2017. Both were born in Australia but lived and worked in the United States. The wife and the parties’ children returned to live in Australia in 2015. The husband commenced proceedings in Australia. In the recent decision of Underwood v Underwood, the Full Court of the Family Court of Australia recently considered the Courts power to grant Orders known as anti-suit injunctions.
The position was that the wife was seeking Orders in relation to Property division and Parenting in the United States whilst the husband was seeking Orders in relation to Property and Parenting in Australia.
Two different Courts in two different countries were being asked to consider the same question. The issue of conflict of laws and specifically anti-suit injunctions requires the Court to apply certain tests.
In the case of Underwood, the Court did make injunctive Orders to protect the assets in Australia pending the outcome of the proceedings but did not proceed to finally determine whether or not the whole set of Orders sought by each of the husband and the wife should proceed in Australia or the United States.
The Family Court of Australia in certain circumstances will make an order that the proceedings commenced in Australia are permanently stayed and cannot then proceed. This will leave the parties to resolve their disputes in the jurisdiction of another Country.
The Court will not in all circumstances make an immediate order restraining the proceedings by way of a permanent stay however instead the Court may make interlocutory orders for example, an order creating a temporary stay of the proceedings in Australia pending the outcome of the proceedings in another jurisdiction.
There are most often advantages and disadvantages for each party to a dispute to have the matters determined in one country or another.
Watson & Watson and their experienced Family Lawyers have conducted numerous multi-jurisdictional cases and have advised parties relating to such issues. The earlier that you obtain advice and make decisions the better it is for you in relation to such difficult issues as to the appropriate jurisdiction. If you have any queries please contact Richard Watson or his Personal Assistant Shereen DaGloria to discuss this 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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