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With international travel and international investments increasing on an exponential level, it is not uncommon for parties to be able to commence proceedings in more than one country. International mobility has produced a volume of family law cases where the first question the Court must determine is whether Australia is able to determine property, parenting or divorce proceedings. Consider this example- a couple enter into a prenuptial agreement in one country, but live for the majority of the relationship in another country where the majority of the assets are held. Is it more appropriate for the parties to apply for property Orders in the country where the prenuptial agreement was executed, or the country where the majority of the relationship took place?
The focus of the enquiry is on the inappropriateness of one Court (or country) rather than the appropriateness or comparative appropriateness of another Court (or country). That is, the role of the Court is not to compare the competing available forums. Instead, the question for the Court is whether Australia is “clearly an inappropriate forum.”
The first step a Court must determine is whether the Court has jurisdiction to hear the matter. At the date of Application, either of the parties must be an Australian Citizen, ordinarily resident in Australia or be present in Australia.
If that initial enquiry is satisfied, the Court must still determine whether or not Australia is a “clearly inappropriate forum”. Under this secondary enquiry, some factors that the Court may consider include:
If a Court finds that a party has already commenced proceedings in another jurisdiction, the Court could also make an Order to “stay” the proceedings in Australia. This has the effect of pressing pause on the Australian proceedings until the outcome of the overseas proceedings can be determined or an issue in dispute is clarified.
Finally, if it is established that another jurisdiction has already determine a matter on a final basis, the Court could refuse to entertain the application in its entirety.
If you would like further advice in respect to whether Australia is the appropriate jurisdiction to determining your property matters, please do not hesitate to contact one of our solicitors.
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