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Relevant Court in Family Law Matters - New Zealand or Australia?


Watson & Watson often receive enquiries and provide advice in relation to whether proceedings should be conducted in Australia or in other countries throughout the world.  There are advantages through some jurisdictions and disadvantages in other jurisdictions, depending upon what issues are in contention and what is the factual matrix of the relationship and financial matters. 

A recent case in 2016 in the Full Court of Australia has considered what is the relevant test for determining whether proceedings under the Trans-Tasman Proceedings Act, 2010 (Commonwealth) should proceed in New Zealand or Australia.

In this case Counsel argued that a different test should apply under the Family Law Act.

When there are in existence or potentially two separate proceedings relating to the same relationship, one proceedings by one party say in New Zealand and the other proceedings by the other party in Australia, there are many factors to take into account as to whether a Court will stay one set of proceedings or another and whether the disputes will be heard for example, in this case, in New Zealand or in Australia.  There are different outcomes to the proceedings depending on which Court they are determined in. 

In this recent case the Full Court of Australia considered what is the appropriate test to apply, to determine the appropriate Court or Forum.  The Full Family Court decided that the test was the “more appropriate” forum rather than whether one Court was clearly “an inappropriate” forum.

The Trans-Tasman Proceedings Act 2010 provides that the Australian Court in considering the matter is given a discretion which is constrained by two factors. The first is the Court must take into account a number of factors prescribed in Section 19(2).  Secondly, the Court must not take into account the fact that the proceedings being considered were commenced in Australia, otherwise the Court is unconstrained as to the exercise of its discretion. 

The Court considered the notion of discretion and referred to the High Court in Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission which stated:

           “Discretion” is a notion that signifies a number of different legal concepts.  In general terms it refers to a decision–making process in which “no one” [consideration] and “no combination” of considerations [is necessarily determinative of the result].  Rather, the decision-maker is allowed some latitude as to the choice of its discretion to be made.  Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to made:

  1. The correctness of the discretion can only be challenged by showing error in the decision-making process; and
  2. Unless the relevant statute directs otherwise, it is only if there is an error in that process that a discretionary decision can be set aside by an Appellant Tribunal.

The discretion at large is not an overall discretion but one that should be objectively considered to arrive at the decision.

It is important to be aware that where a decision is based on discretion, the prospect of a successful appeal is limited because of the above. 

If your case involves the possibility of two or more jurisdictions worldwide please do not hesitate to contact Richard Watson our experienced family lawyer to discuss the alternatives available to you.

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