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

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.

If you have family law issues that extend international borders, contact us immediately to speak to an Accredited Family Law Specialist who can advise you on the most effective course of action.