The majority of applications for a property settlement that come before the Federal Circuit and Family Court of Australia (“FCFCOA”) involve two parties who ordinarily reside in Australia and own property in Australia. However, there are some matters where:
The parties ordinarily reside in Australia, however most of their assets are owned overseas; or
One or both of the parties do not usually reside in Australia, but they have property in Australia.
In these circumstances, it may be possible for the parties to invoke the jurisdiction of not only the FCFCOA, but also the courts of another country (i.e. where the parties are residing or where the property is held). Commencing proceedings in another country, when the FCFCOA already has jurisdiction mostly occurs out of convenience, however it is also sometimes done for strategic advantage.
If proceedings are commenced in FCFCOA by one party, and in another country by the other party, it will likely be necessary for the FCFCOA to decide whether it should continue to hear the matter. In these circumstances, it is likely that the following two applications will be made in the FCFCOA:
The Applicant in the FCFCOA proceedings will likely seek an anti-suit injunction restraining the other party from continuing the overseas litigation; and
The Respondent in the FCFCOA proceedings will likely seek a stay (or in other words a pause) of the FCFCOA proceedings to enable the overseas litigation to continue.
The FCFCOA will not lightly make the decision to stay its own proceedings; it has an inherent jurisdiction to permit the protection of its own processes from being used to bring about an injustice.
The High Court case of Voth v Manildra Flour Mills (1990) 171 CLR 538 outlines that the relevant principle to be applied by the FCFCOA in determining an application for a stay of the Australian proceedings is that of forum non conveniens. The relevant test associated with this principle is whether the Court in which the stay is sought is “clearly an inappropriate forum”. The onus of establishing that Australia is clearly an inappropriate forum will be upon the party seeking the stay.
When considering whether Australia is clearly an inappropriate forum, the FCFCOA will look at:
Whether each Court has jurisdiction to hear the matter;
If the answer to 1 is yes, will each Court recognise each other’s orders or decrees?
Which forum will provide a more complete resolution of the matters?
In what order were the proceedings instituted?
What stage are each set of proceedings up to?
What costs have the parties incurred in each set of proceedings?
The connection of the parties and their marriage with each of the jurisdictions and the relief that is available in each of the jurisdictions?
The parties’ resources and understanding of the language – for example, can the parties participate in the proceedings on an equal footing? and
The general nature of the case, taking into consideration the true nature and full extent of the issues involved.
The purpose of the above is not to compare the two jurisdictions or consider which is more appropriate; rather, the FCFCOA is to consider whether it is clearly an inappropriate forum having regard to the above. If the Court finds it is clearly an inappropriate forum, it will be required to grant a stay of its proceedings.
However, if the stay application is denied, the FCFCOA will then consider any application for an anti-suit injunction. Where the proceedings are the same (i.e. seek orders with respect to the same subject manner), the FCFCOA must give consideration to whether the continuation of duplicated proceedings is likely to be vexatious or oppressive. Where the answer is yes, the FCFCOA may consider making an anti-suit injunction preventing the continuation of the other court proceedings.
Issues of forum can be complex. It is important that the issue of forum is raised early, and without delay. If you think this issue is applicable to your family law matter, you should seek advice from a specialist family lawyer without delay. Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.
Author: Peta Sutton