How Australian Courts Decide Jurisdiction in Family Law Matters Across Australia and Overseas

I HAVE A FAMILY LAW MATTER IN AUSTRALIA AND OVERSEAS, HOW WILL A JUDGE IN AUSTRALIA DECIDE IF THE AUSTRALIAN COURT SHOULD CONTINUE TO HEAR MY CASE?

A person who issues proceedings in a court has a prima facie right to have proceedings determined unless the jurisdiction is a “clearly inappropriate forum”. This test is clearly set out Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 and Oceanic Sun Line Special Shipping Company Inc v Fay [1988] HCA 32 where Deane J said:

7. The power should only be exercised in a clear case and the onus lies upon the defendant to satisfy the local court in which the particular proceedings have been instituted that it is so inappropriate a forum for their determination that their continuation would be oppressive and vexatious to him

In the High Court decision of Henry v Henry [1996] HCA 51, which was further confirmed as leading law in the matter of Whung & Whung [2011] FamCA 137 at [43], sets out the following matters that arise for consideration in an application such as this. The considerations of whether Australia would be a clearly inappropriate forum depends on the following”

1. No question arises unless the courts of the respective countries have jurisdiction with respect to the parties and their marriage. Jurisdiction refers to the official power and the extent of the power to make legal decisions and judgements. 
2. If both countries have jurisdiction, it will be relevant to consider whether each will recognise the other’s orders and decrees. If the orders of the foreign court will not be recognised in Australia, that will ordinarily dispose of any suggestion that the local proceedings should not continue. However, if the orders of the foreign court will be recognised in Australia, it will be relevant to consider whether any orders may need to be enforced in other countries and, if so, the relative ease with which that can be done.

3. It will be relevant to consider which forum can provide more effectively for complete resolution of the matters involved in the parties’ controversy.

4. Other considerations include the order in which the proceedings were instituted.

5. The stage which the proceedings have reached.

6. The costs that have been incurred.

7. It will be relevant to consider the connection of the parties and their marriage with each of the jurisdictions and to have regard to the issues on which relief might depend in those jurisdictions.

8. It will be relevant to consider whether, having regard to their resources and their understanding of language, the parties are able to participate in the respective proceedings on an equal footing.

9. It will be relevant to consider “the general circumstances of the case”, taking into account “the true nature and full extent of the issues involved.”

The Court will have a generally wide discretion in determining whether Australia is a clearly inappropriate forum and there is a wide range of considerations which ultimately determine the answer to the forum test. If you have a matter where you wish to argue that Australia is the inappropriate forum, then