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Clearly Inappropriate Forum

In today’s society, it is not uncommon for families to be positioned all over the globe. For example, parties to a relationship could likely hold assets in Hong Kong and the Philippines while one person lives in Australia with the children in a family home and the other lives and works in Papua New Guinea.

In the unfortunate circumstances that proceedings need to be initiated to resolve family law matters, it is important to ensure that they commence in a favourable jurisdiction. As each country has its own law with respect to deciding family law matters, it can make a large difference to the outcome of a dispute and the effect on each person.

For instance, Hong Kong has generous spousal maintenance provisions, and in the event your partner earns a larger income than you, it might be advantageous to file proceedings there (provided you meet the jurisdictional requirements). However, Hong Kong does not separate parenting and property matters in its jurisdiction, therefore if you do not want to raise issues in relation to parenting, then it might not be a good idea to file proceedings in Hong Kong.

In some circumstances, both parties file in two different jurisdictions which causes a dispute in relation to where the matter should be heard. If, for instance, one person files in Papua New Guinea and the other files in Australia, an anti-suit injunction may be filed against the proceedings in Australia. This application effectively asks the Federal Circuit and Family Court of Australia (FCFCA) to determine whether Australia is a “clearly inappropriate forum” for the matter to be heard.

The court has determined that Australia will be a clearly inappropriate forum where the proceedings are “seriously and unfairly burdensome, prejudicial or damaging” to the other party causing “serious and unjustified trouble and harassment” (Henry v Henry). There are several factors the court can consider when determining this issue including:

  • the value of the assets held in each respective jurisdiction;
  • whether the parties have a significant personal connection to either jurisdiction;
  • whether either party is a resident of either jurisdiction;
  • whether either jurisdiction can provide a complete resolution to the dispute;
  • the availability of expert witnesses in either jurisdiction and the costs associated with obtaining such evidence;
  • whether orders made in the other jurisdiction are recognised in Australia; and
  • if children are involved, where they are located and their likely involvement in the proceedings, including whether they would need to travel.

This is not an exhaustive list and the court is open to exercise their discretion when deciding this issue.

In these matters, it pays to be organised and to research potential jurisdictions that might favour one party over the other. Strategically, it might simply be a matter of filing proceedings before the other person to secure a more favourable jurisdiction.

For advice or representation in any legal issue, please contact Armstrong Legal.

Michelle Makela

This article was written by Michelle Makela

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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