International family law forum disputes

If you have an international family law dispute and you’re wondering whether Australia should exercise jurisdiction under the Family Law Act, the usual test is whether or not Australia is a “clearly inappropriate forum”.

The “clearly inappropriate forum” test decides whether using the Family Court and maintaining Australian proceedings would be:

• Oppressive, that is, seriously and unfairly burdensome, prejudicial or damaging.
• Vexatious, that is, productive of serious and unjustified trouble and harassment.

When deciding whether or not Australia is a “clearly inappropriate forum”, the question is not whether a different forum in another country is “more appropriate”. Instead, the test merely defines whether Australia is “clearly inappropriate”.

This means that, unless Australia can be proven to be a “clearly inappropriate forum”, it will exercise its jurisdiction to hear the matter. In this respect, Australian law differs from the English position, which states that local proceedings must be stayed where a more appropriate forum exists.

In deciding whether Australia is a “clearly inappropriate forum”, the court may consider whether connecting factors exist or whether there is a legitimate juridical advantage. Generally, the court will consider:

• Where both parties reside
• Factors of convenience
• The expense to both parties (including the location of evidence)
• The governing law
• The existence of any legitimate advantage to the applicant of proceeding within the forum

In cases where there are at least two forums available for the hearing and resolution of the dispute, the court will also look at factors that are relevant to litigation between spouses ‘with respect to their marital relationship’. These include:

• Whether the orders of each court would be recognised in the other jurisdiction
• Which court can most effectively and completely resolve the issues
• The order in which proceedings were commenced (this factor is only relevant to cases in which there is litigation pending in more than one jurisdiction)
• The stages which litigation has reached in each jurisdiction (this factor is only relevant to cases of parallel litigation, and may be related to the previous factor)
• The costs the parties have incurred in each jurisdiction
• The parties’ ability to participate in proceedings in each forum (this factor is not necessarily limited to cases of parallel proceedings, and is likely to be particularly relevant in most international family law cases. This may include a consideration of financial ability, and other practical issues such as ability to travel to participate in litigation abroad)

International family law disputes in practice

To show you the “clearly inappropriate forum” test in action, we’ll consider the Deslandes & Deslandes [2015] FamCA 913 case.

During their relationship, both parties had lived in France for 5 years, sailed around the world for 4.5 years and lived in Australia for 4 years.

As part of their relationship, both parties entered into a prenuptial agreement while they were in France.

Due to this, the husband argued that his wife’s Australian proceedings for a property settlement were “an abuse of process” and that the proceedings ought to be stayed on forum grounds.

Although during proceedings it was noted that the French court was “the most appropriate forum”, this did not result in the conclusion that the Australian court was a “clearly inappropriate” one.

Instead, because both parties were residents of Australia, planned to remain so and held Australian assets, it was decided that Australia could not be deemed a “clearly inappropriate forum”. It was also noted that holding the proceedings in France (where they did not live) would add additional expense to both parties.

In addition, although the couple had a French prenuptial agreement, they also had Australian parenting orders, so it was considered contradictory for the husband to contend that the Australian Court was “a clearly inappropriate forum” for property matters, when he had invoked the Family Court of Australia’s jurisdiction by applying for parenting orders.

Plus, the French prenuptial agreement did not state that the parties submitted exclusively to the courts of France to determine any financial issues.

Overall, it was decided that the Australian court could not be deemed a “clearly inappropriate forum” even though the couple had a French prenuptial agreement due to:

• The heightened costs of dealing with the case in France
• The fact that the couple had Australian parenting orders and
• The fact that the French prenuptial agreement was not relevant to the question of forum because the agreement did not include any provisions about that issue.