The issue of forum: when proceedings are commenced in Australia and overseas

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:

1. The parties ordinarily reside in Australia, however most of their assets are owned overseas; or

2. 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:

1. The Applicant in the FCFCOA proceedings will likely seek an anti-suit injunction restraining the other party from continuing the overseas litigation; and

2.   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:

1. Whether each Court has jurisdiction to hear the matter;

2. If the answer to 1 is yes, will each Court recognise each other’s orders or decrees?

3.  Which forum will provide a more complete resolution of the matters?

4.  In what order were the proceedings instituted?

5.  What stage are each set of proceedings up to?

6.  What costs have the parties incurred in each set of proceedings?

7.  The connection of the parties and their marriage with each of the jurisdictions and the relief that is available in each of the jurisdictions?

8.  The parties’ resources and understanding of the language – for example, can the parties participate in the proceedings on an equal footing? and

9.  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

Steps to Consider Before Taking the Next Step.

It is an exciting milestone in a relationship to move in with your partner. Your partner may be moving in to your property, or you might be thinking about renting a property together.  

Whilst seeing a family lawyer can seem less romantic than picking out a new lounge, it can be useful to understand your rights in the event of relationship breakdown, particularly if you own a property or have significant savings or assets such as a share portfolio. 

People often have a misconception that if you own your property prior to living with your partner, you will automatically “lose” 50% of your property when you break up or that you will be able to “quarantine” it in the event of a separation. No relationship is the same and there is no hard and fast rule which entitles your partner to half of your property in the event of a relationship breakdown. Nor may your property interests be protected from a claim by your partner if you separate. 

When dealing with a claim for property settlement following the breakdown of a relationship (whether you are ‘de facto’ or married), the Court will first look at whether it is ‘just and equitable’ to make any alteration of your property interests. The Court then assesses contributions and future needs. 

For example, say you own a property in Canberra with your partner. You bought it 3 years prior to moving in together. During your relationship, you and your partner share finances and your partner starts to help you in repaying the mortgage. You decide to renovate the property and each contribute $100,000 towards improving the property (i.e. your partner is making financial contributions to the property). Each weekend, your partner spends hours out in the garden and does landscaping (they may be considered as non-financial contributions). You then split from your partner 20 years later. 

In this scenario, it may be ‘just and equitable’ to divide your interests in the property and your partner is likely to be entitled to a ‘share’ in your property as a result of their contributions (both financial and non-financial). 

Take another scenario where you owned your property outright prior to the relationship, having inherited it from your parents. Your partner moves in and you live together for 3 years. Throughout your relationship, you and your partner maintain separate finances and your partner makes no contributions towards your property. You ultimately break up after 3 years. In this alternate scenario, the Court may not consider it ‘just and equitable’ to alter your interests in that property as your partner may not have been seen to have made any contributions to it. 

There are a number of factors that may impact on the outcome of these scenarios, including what other assets, liabilities or superannuation are in the ‘property pool’, whether you have children together and each of your ages, health and other future needs. 

Whether you have been dating for 3 months or for a few years, if you are considering cohabitation, it would be beneficial to see a family lawyer to understand how the law operates and the impact moving in together may have on you / your assets.  You can make an appointment with us on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online  with one of our experienced lawyers to obtain advice.  

Author: Anika Buckley

How Long is Too Long? Court Dismisses Property Settlement Application After 30 Years

In the case of Estes & Holmes [2022] FedCFamC1F 267, the court summarily dismissed an application by the wife for an adjustment of property interests.  

The parties had separated 1985 after a 14 year marriage. The parties were involved in family law proceedings in 1988 and in 1989 a hearing occurred without the husband being present. Orders were made adjourning the property settlement proceedings until such time as the husband received his superannuation entitlements, which were the only property of any value at the time of those proceedings. At the time, it was anticipated that the husband may receive his superannuation entitlements in or about 2006. 

The Wife sought to commence proceedings in 2020 seeking orders for an adjustment of property interests. At that time, the parties had been divorced for 31 years. 

The Wife’s application was summarily dismissed, as a result of:

1. The delay in bringing the application. The Wife could have sought to have the 1989 proceedings relisted at an earlier time;

2. The Wife did not offer an explanation for the delay in bringing a fresh application for property settlement (or explaining her reasons for not having sought to relist the 1989 proceedings);

3. The Husband’s superannuation in 1989 was approximately $150,000 but he was now in receipt of the age pension and had minimal property in his name;

4. The Wife was not able to demonstrate that the Husband had been served with the Orders made in 1989 adjourning the proceedings, noting that he was not present at Court on that date, and was not legally represented. 

Although the Court has the ability to grant leave to parties who have applied for a property settlement “out of time”, there is no guarantee that any such application would be successful. In any event, bringing an application out of time results in increased legal costs whilst the Court determines the threshold issue of whether a party should be granted leave to bring such an application. In the case of Skelton & Lindop [2022] FedCFamC1A 47, the de facto wife applied to the Court when the parties had been separated for 2 years and 9 months (9 months “out of time”). 

At first instance, the primary judge dismissed the de facto wife’s application. On appeal however, the first instance decision was set aside, and the Court granted leave for the de facto Wife’s application to proceed out of time. Notably, it had taken over three years for the Wife’s application to be determined, by which time the parties had been separated for 5 years and incurred considerable legal costs, and the outcome of the property settlement itself had not yet been determined. 

What does this mean for you?

 The above cases demonstrate the risks associated with delay in formalising property settlements.

 It is important to know that there are time limits which impact your ability to seek an adjustment of property interests after separation or divorce.   

1. If you have been in a de facto relationship, you have two years from the date of separation to formalise your property settlement by entering into Consent Orders, or to bring an application to the Federal Circuit and Family Court of Australia, seeking orders for an adjustment of property interests.

2. If you are married (or divorced), you have 12 months from the date that a divorce order comes into effect to formalise your property settlement by entering into Consent Orders, or to bring an application to the Federal Circuit and Family Court of Australia, seeking orders for an adjustment of property interests. 

If you are a party to dormant family law proceedings which have been adjourned pending the retirement of one party, or until such time as a superannuation split can be effected, you should seek urgent advice in relation to your circumstances. 

It is prudent to obtain advice tailored to your circumstances from a family lawyer, ideally as soon as possible after separation, in order to preserve your interests. 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: Margot McCabe