Cross-border Family Law: Advising Clients when Other Jurisdictions are in Play

Today’s increasing globalisation means that the numbers of couples and families who are temporary or permanent residents, own property, have property interests and/or run businesses in other countries is on the rise. While Australian lawyers cannot (and should not) provide advice to their clients about their legal entitlements in other countries, they do need to have a basic understanding of how other countries may deal with property or children in order to formulate advice to the client about their Australian family law options, identify potential forum issues, and know when to seek advice from a qualified lawyer in the relevant country. 

Contents

1. Scope of this paper
2. Forum 
3. Forum tests in Australia
4. Forum tests in overseas jurisdictions
5. Stays and anti-suit injunctions
6. Hague Convention on the Civil Aspects of International Child Abduction 1980
7. Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children 1996
8. Overview of property regime in New Zealand
9. Overview of property regime in China – Hong Kong
10. Overview of property regime in People’s Republic of China
11. Overview of property regime in England and Wales
12. Overview of property regime in Scotland
13. Overview of property regime in the United States of America 
14. Overview of parenting regime in China – Hong Kong
15. Overview of parenting regime in People’s Republic Of China
16. Overview of parenting regime in the United States of America
17. Effect of Divorce
18. Superannuation and pensions
19. Tips and tricks
20. References

 

1. Scope of this paper

This paper focuses on property settlement and certain parenting matters which may arise under the Family Law Act 1975 (Cth) (‘FLA’).

It is beyond the scope of this paper to deal with enforcement of child support, child maintenance, spousal maintenance, divorce, pre-nuptial agreements and international relocation. Enforcement of orders is not dealt with in detail but may be a factor in deciding where litigation should occur. In most jurisdictions, family law property orders can only be enforced by non-family law means. Child support obligations are frequently recognized in other jurisdictions. For example, Hong Kong, New Zealand, the Republic of Ireland and the United States of America are listed in Schedule 2 of the Family Law Regulations 1984 as reciprocating jurisdictions for the purpose of s 110 FLA. Parenting orders are more likely to be easier to register in overseas jurisdictions than property orders. 

Also not dealt with in this paper are:

• Service – see the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of 1965; with respect to New Zealand – the Trans-Tasman Proceedings Act 2010 (Cth) (TTPA) (s 9), the Family Law Regulations 1984 (Pt IIAB for Service Convention countries and Pt IIAC for non Service Convention countries) and bilateral treaties. 
• Evidence gathering abroad – see the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, TTPA, the Foreign Evidence Act 1994 (Cth) and bilateral treaties. 

Whilst family lawyers in Australia are likely to encounter many other jurisdictions, the most common, and those which are considered in this paper, are probably:

• New Zealand
• China – Hong Kong and the People’s Republic of China
• United Kingdom
• United States of America

A simple overview of each jurisdiction is given, but this overview is not intended to replace the need for up-to-date advice from a lawyer qualified to practice in the jurisdiction covered and with expertise in family law, dealing with the particular fact situation. The case examples used are cases decided in Australian Courts.

2. Forum

The mere fact that a party is present in a particular jurisdiction, or has property there, may not be enough in itself for a particular court to exercise jurisdiction. The relevant forum test for the jurisdiction must be met.

The jurisdiction under the FLA for proceedings (other than divorce and declarations as to validity of marriage, divorce and annulments), is set out in s 39(4)(b) FLA and requires that:

(b) … any party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, at the relevant date.

The “relevant date” is defined in s 39(4A) and is the date on which the application is filed. 

Where proceedings could be determined in two or more different jurisdictions it may be necessary to consider such factors as which jurisdictions have forum, which jurisdiction will likely give a more favourable outcome, whether one court will grant an anti-suit injunction against a party trying to litigate in the other jurisdiction and in which jurisdiction the proceedings might be heard and determined first. With respect to the last point, a party seeking to litigate in Australia can be at a considerable disadvantage as our proceedings are often viewed as being slow.

3. Forum tests in Australia

Financial matters

The forum test in Australia for financial matters (except as regards New Zealand) is that a stay of Australian proceedings will be granted if the Australian court is “a clearly inappropriate forum”. This is the same test as in most non-family law matters in Australia. The leading case is Voth & Manildra Flour Mills Pty Ltd (1990) 171 CLR 35, [1990] HCA 55 and Henry v Henry [1996] HCA 51; (1996) 185 CLR 571. The test in Voth was stated at [30]:

First, a plaintiff who has regularly invoked the jurisdiction of a court has a prime facie right to insist upon its exercise. Secondly, the traditional power to stay proceedings which have been regularly commenced, on inappropriate forum grounds, is to be exercised in accordance with the general principle empowering a court to dismiss or stay proceedings which are oppressive, vexatious or an abuse of process and the rationale for the exercise of the power to stay is the avoidance of injustice between parties in the particular case. Thirdly, the mere fact that the balance of convenience favours another jurisdiction or that some other jurisdiction will provide a more appropriate forum does not justify the dismissal of the action or the grant of a stay. Finally, the jurisdiction to grant a stay or dismiss the action is to be exercised “with great care” or “extreme caution”.

Some of the most recent Full Court of the Federal Circuit and Family Court of Australia (FCFCOA) cases to consider Voth are Bakshi & Mahanta (No 2) [2022] FedCFamC1A 90, Beng & Kwok [2022] FedCFamC1A 117, Pathak & Hardikar [2022] FedCFamC1A 163 and Kornfield & Wehinger [2023] FedCFamC1F 817. These cases apply the relevant factors from this list:

• What “connecting factors” are there? These include the availability of witnesses and whether a forum is the “natural forum” as having the most real and substantial connection, such as the law governing the transaction and the places where the parties respectively reside and carry on business;
• Legitimate personal or jurisdictional advantage in having the proceedings heard in a particular forum. These advantages may include for family law matters: a better discovery process, causes of action not available in the other jurisdictions (eg. s 106B) of the FLA, a better financial outcome and a more generous limitation period;
• Parallel proceedings in different jurisdictions should be avoided if possible;
• Local professional standards where they are in question;
• The law of the local forum in determining the rights and liabilities of the parties;
• The lex causae. The substantive governing law which applies to the proceeding in a particular court may be foreign law. Foreign law is not commonly applied in Australia; 
• Any agreement to have disputes resolved in a certain court or jurisdiction. Potentially relevant here is the Hague 2005 Convention on Choice of Court Agreements. Australia is not yet a signatory although work has been done towards Australia becoming one. In any event, family law matters are not covered by the Convention;
• Whether each court will recognise the other’s orders and decrees and the ease of enforcement;
• Which forum can provide more effectively for the complete resolution of the parties’ controversy;
• The order in which the proceedings were instituted and their current status;
• The stage to which the proceedings have reached;
• The costs that have been incurred;
• The issues on which relief may depend in each jurisdiction.

An Australian court can grant an anti-suit injunction prohibiting a person from initiating or continuing an action in another jurisdiction if an Australian court has held that the case should be determined in Australia. Recent examples are Kwok & Beng (No 2) [2022] FedCFamC1F 263 (parenting proceedings in Australia and China) and Bhasin v Bhasin [2023] FedCFamC1F 96. Kwok & Beng (No 2) is discussed later in this paper. 

Parenting matters

The forum test for parenting matters is not the clearly inappropriate forum test which usually applies in Australia. Instead, as with all parenting matters, the question is what is in the best interests of the child. In ZP v PS [1994] HCA 29; (1994) 181 CLR 639 at [8] the High Court determined that the principle in Voth applied to all matrimonial proceedings except parenting matters. Mason CJ, and Toohey and McHugh JJ held:

In exercising the parens patriae jurisdiction or a statutory jurisdiction which makes the welfare of the minor the first and paramount consideration, that Court always makes an independent judgment on any question concerning the custody of a child and cannot blindly follow an order made by a foreign court. Because the welfare jurisdiction of the Family Court is similar to the parens patriae jurisdiction of the Court of Chancery, the Family Court must also form an independent judgment as to what the welfare of the child requires notwithstanding the existence of any custody order made by a foreign court. Moreover, proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression because the Court is not enforcing a parental right to custody or access. Its duty is to make such order as will “best promote and protect the interests of the child”. It follows that, when a child is within the jurisdiction of the Family Court, the doctrine of forum non conveniens has no application to a dispute concerning the custody of the child. Injustice to one or other of the parties, expense, inconvenience and legitimate advantage, which are always relevant issues in a forum non conveniens case are not relevant issues in a custody application. In some cases, those matters may bear on issues which touch the welfare of the child but they are not themselves relevant issues when the question arises whether the welfare of the child requires the making of an order that the issue of custody be determined in a foreign forum. When the Family Court is seized of jurisdiction in relation to the custody of  child, its duty is to exercise its jurisdiction. (Footnotes omitted)

The jurisdictional connection with Australia that is required for the institution of proceedings under Pt VII is set out in s 69E. Proceedings may be instituted under the FLA in relation to a child only if one of the following applies:

• the child is present in Australia on the relevant day (as defined in subsection (2));

• the child is an Australian citizen, or is ordinarily resident in Australia, on the relevant day;

• a parent of the child is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day;

• a party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or

• it would be in accordance with a treaty or arrangement in force between Australia and an overseas jurisdiction, or the common law rules of private international law, for the court to exercise jurisdiction in the proceedings.

The term “child” is defined in s 4(1) to include an adopted and a stillborn child, and “relevant day” is defined in s 69E(2) as the day on which the application is filed.

New Zealand 

The test for jurisdiction as between Australia and New Zealand for matters caught by Part 3 of the Trans-Tasman Proceedings Act 2010 (Cth) (TTPA), is set out in s 19(1)(b) of the TTPA, and is the “more appropriate forum” test. This test applies to all family law matters (both parenting and financial) except:

• Divorce
• Enforcement of spousal maintenance
• Enforcement of child support

Section 19(2) lists the matters which the Australian Court must take into account:

• the places of residence of the parties or, if a party is not an individual, its principal place of business;

• the places of residence of the witnesses likely to be called in the proceeding;

• the place where the subject matter of the proceeding is situated;

• any agreement between the parties about the court or place in which those matters should be determined or the proceeding should be commenced (other than an exclusive choice of court agreement to which subsection 20(1) applies);

• the law that it would be most appropriate to apply in the proceeding;

• whether a related or similar proceeding has been commenced against the defendant or another person in a court in New Zealand;

• the financial circumstances of the parties, so far as the Australian court is aware of them;

• any matter that is prescribed by the regulations;

• any other matter that the Australian court considers relevant;

This test applies in determining whether Australian proceedings should be stayed because New Zealand is the “more appropriate forum”. Part 3 of the TTPA deals with “civil proceedings” which are defined in s 4 to be proceedings that are not criminal proceedings, therefore the term “civil proceedings” covers family law proceedings. Part 5, which deals with subpoenas, specifically excludes Hague Child Abduction proceedings. Part 7 deals with the recognition and enforcement in Australia of certain New Zealand judgments. New Zealand judgments which can be registered in Australia include those:

• requiring a person to pay money
• ordering a person do to something (for example, to return specific property)

These two categories are types of orders which may be made in FLA proceedings.

New Zealand has similar legislation which applies to certain FLA judgments, the Trans-Tasman Proceedings Act 2010 (NZ). 

4. Forum test in overseas jurisdictions

In most countries besides Australia, the forum test is the forum non conveniens or “more appropriate forum” test. Australia only applies this test for matters caught by the TTPA.

In rem or in personam

Courts exercising jurisdiction under the FLA do so in personam rather than in rem. This means that the courts make orders against a person rather than against property. For example, the wording of an order that a property be transferred from one person to another is along the following lines:

“Mabel transfer to Peter her right, title and interest in the Sandringham property.”

An order made in rem would be:

“The Sandringham property be transferred from Mabel to Peter.”

The latter form of order is unenforceable in Australia.

As the parties to orders made in personam are bound, they are easier to enforce if the party against whom enforcement is sought is in Australia. 

For example, in Gresham & Gresham (No 2) [2023] FedCFamC1F 51 the parties disputed whether the overseas pension funds of the husband should be treated as property divisible between the parties, as contended by the husband or whether, as contended by the wife, they should be treated as a financial resource. The husband agreed that the English pension could not be accessed and he proposed that the wife’s share be added to the amounts to be provided to her from the Country Q pensions. The expert evidence confirmed that the only way in which the parties could obtain a pension sharing order under English law was if either of them were domiciled there on the relevant date. The English pension was therefore held to be a financial resource rather than property. The husband sought a different approach with respect to the Country Q pensions than with respect to the English pension.

The husband reminded the court that his pension fund entitlements had a total value of $4,703,770, which comprised more than a one-third of the value of the assets the husband contended was divisible between the parties. The husband conceded that the superannuation-splitting provisions of the FLA did not apply to overseas pension fund entitlements. Notwithstanding that, he contended that part of the value of his interest in the Country Q pension funds might be transferred to the wife, subject to the trustees’ discretion. The husband invited the court to accept that the expert evidence indicated this was so and accordingly contended that the court might compel the husband to do all acts and things necessary to facilitate a splitting of the Country Q pension schemes. The husband’s entitlement to access the pension schemes arose from age 55, but was dependent on his retirement. He was 54 years old at the time of trial. 

The court concluded that both the Country Q funds constituted property for the purposes of the FLA. 

The court found that it was just and convenient to make an in personam order in favour of the wife in relation to the Country Q funds, which it had the power to make against the husband under s 114(3).

Mozambique Rule

The Mozambique Rule is a rule of private international law which limits jurisdiction in respect of actions to title, possession and damages of trespass to foreign land. This rule was established by the House of Lords in British South Africa Co v. Companhia de Moçambique [1893] AC 602 and was based on the difficulties of enforcing orders in relation to land as it is immovable property. The Mozambique Rule does not apply in Australia, which means that Australian Courts, unlike some foreign courts (such as in England), are prepared to make orders with respect to land in foreign jurisdictions. Of course, if neither the property nor the party against whom enforcement is sought are in Australia, enforcement of the order may be impossible. 

Some countries consider the related principle of only exercising jurisdiction over moveable property, not immoveable property. The Australian court may have jurisdiction to make such an order, but enforceability will still be a factor that the court will consider in deciding whether it can exercise jurisdiction. If the court decides to exercise jurisdiction, whether the order is able to be enforced may be a factor in determining whether the discretion to exercise the power should be exercised.

Jurisdiction of the FCFCOA

The former s 31 FLA set out the original jurisdiction of the Family Court of Australia and that it clearly can include persons or things outside Australia. It has been replaced by the similarly worded s 25 (for Div 1) and s 131 (for Div 2) Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act). Section 25 states: 

• The Federal Circuit and Family Court of Australia (Division 1) has original jurisdiction:

• if a matter, being the subject of a family law or child support proceeding, is transferred to the Court by the Court under section 51—as set out in paragraphs 132(1)(a), (b), (c) and (d); or

• if a matter, being the subject of a family law or child support proceeding, is transferred to the Court by the Federal Circuit and Family Court of Australia (Division 2) under section 149—as set out in paragraphs 132(1)(a), (b), (c) and (d); or

• as is conferred on the Court, or in respect of which proceedings may be instituted in the Court, by any other Act.

• Subject to such restrictions and conditions (if any) in:

• section 111AA of the Family Law Act 1975; or

• regulations made under that Act; or

• the Rules of Court made under this Chapter;

the jurisdiction of the Federal Circuit and Family Court of Australia (Division 1) may be exercised in relation to persons or things outside Australia.

Section 111AA of the FLA excludes child and spousal maintenance obligations where the payee is habitually resident in New Zealand. Section 131, which applies to FCFCOA (Div 2) is worded slightly differently. 

In Gould & Gould v Swire Investments Ltd (1993) FLC 92-434; [1993] FamCA 126 the former s 31 FLA was examined in the context of foreign corporations and the extra-territorial reach of that provision was confirmed.

The order may still need to be registered in the foreign country to be enforceable and this will depend upon the existence of co-operative legislation (eg. TTPA), international treaties or the local law of the other country.

The FCFCOA may be reluctant to make orders with respect to foreign jurisdictions, if there are enforcement concerns even if the Australian forum test is satisfied.

5. Stays and anti-suit injunctions

A stay is an order which halts part or all of a proceeding before the court in which the stay order is made. An anti-suit injunction is an order which prevents a person from commencing or continuing a proceeding in another court, including in an overseas jurisdiction. The court may require the person who is the respondent to an anti-suit injunction to seek a stay or dismissal of the proceedings they instituted in other jurisdictions.

In CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345; [1997] HCA 33 the High Court of Australia developed the principles governing the exercise of the discretion to grant anti-suit injunctions. The two grounds upon which an anti-suit injunction can be granted are:

• The inherent jurisdiction of the court to protect the integrity of the court’s processes. This ground is usually used when the forum is in dispute;
• The court’s equitable jurisdiction to restrain unconscionable conduct or the unconscientious exercise of legal rights. An example of where this ground may be used is where a financial agreement has a choice of jurisdiction clause. 

Kent & Kent (2017) FLC 93-792; [2017] FamCAFC 157 is the leading family law case. The Full Court of the Family Court discussed the test for stays and anti-suit injunctions in family law proceedings, although the same test applies as in non-family law matters. Leave to appeal against the stay application was dismissed but leave to appeal in respect of the anti-suit injunction was allowed. The Full Court re-exercised its discretion applying the correct test and granted an anti-suit injunction to protect the integrity of the court’s processes.

The husband commenced proceedings in Papua New Guinea (PNG) for divorce relying upon only one ground, adultery. Three months later, the wife commenced proceedings for settlement of property in the Family Court of Australia but did not apply for a divorce. The wife contended that the parties had, at that time, not been separated continuously for twelve months.

The husband filed a Notice of Motion and Application for Ancillary Relief in PNG, seeking leave to file an Amended Petition for Decree of Dissolution of Marriage to include a claim for property settlement. He also sought to add the grounds of desertion and separation, and sought an anti-suit injunction in the PNG court to restrain the wife from continuing with the Australian proceedings until the final determination of the proceedings commenced by him in PNG.

The husband then sought an order in Australia that the wife’s Australian proceedings be stayed pending the decisions of the PNG court regarding his application for dissolution of marriage and his application for leave to amend that application and apply for ancillary relief.

The primary judge dismissed the husband’s application seeking an order that the wife’s proceedings be permanently stayed, and granted an anti-suit injunction restraining the husband from prosecuting his proceedings in the PNG. The primary judge dismissed the husband’s application for a stay on the basis that such an outcome would be oppressive and vexatious in the sense of Voth. 

The husband successfully sought leave to appeal and his appeal was successful. He asserted that issues significant to the determination of whether the Family Court was a clearly inappropriate forum were not in the primary judge’s listing of those factors. He further argued that the primary judge failed to consider relevant considerations in the exercise of her discretion. The Full Court of the Family Court held:

• For those reasons we consider that it was not open to her Honour to find on the evidence before her that the husband’s proceedings for dissolution and leave in PNG ‘would be oppressive and vexatious in the Voth sense’ and/or that an injunction restraining the husband from pursuing those proceedings was ‘necessary to protect the integrity of [the Family] Court’s processes’. (at [62])

• If that part of the husband’s application in PNG is not enjoined, its continuation would constitute a challenge to the Family Court’s decision not to stay its own proceedings and thus should be construed as a challenge to the integrity of the Australian proceedings. For reasons explained in Teo & Guan, [(2015) FLC 93-653; [2015] FamCAFC 94] the Family Court has power to grant an injunction to protect its own processes, and one manifestation of the exercise of that power is the granting of an injunction to enjoin, as being vexatious or oppressive, foreign proceedings ‘which have a tendency to interfere with the due process of the domestic court’. (at [67])

6. Hague Convention on the Civil Aspects of International Child Abduction 1980

This is a significant topic in itself. The general principle is that as between countries which are signatories to the Convention and have acceded to the other country’s accession, children who have been removed from a jurisdiction without the consent of a parent with rights of custody should be returned to that jurisdiction to enable the dispute to be determined as to the country in which the child should live. 

These cases are usually hotly contested and often involve highly technical arguments as to rights of custody, consent, acquiescence and habitual residence. The defences under the Convention are:

• the applicant was not exercising their rights of custody of the child at the time of the removal or retention;
• the applicant consented to the removal or retention, or subsequently acquiesced to the removal or retention;
• there is a grave risk that the child’s return would expose the child to physical or psychological harm, or otherwise place the child in an intolerable situation;
• the key requirements of the convention have not been met; 
• the child has been in the new country for more than twelve months and is settled there;
• the child objects to being returned to its home country, and is old enough and mature; enough for its views to be considered;
• returning the child would breach their fundamental freedoms and human rights.

More information is on the following websites:

• https://www.ag.gov.au/families-and-marriage/families/international-family-law-and-children/information-responding-parents
• https://www.hcch.net/en/instruments/conventions/specialised-sections/child-abduction

Importantly, the best interests of the child is not a relevant factor. The “grave risk of harm” defence is particularly pertinent in Australia as amendments made in December 2022 to the Family Law (Child Abduction Convention) Regulations 1986 expressly state the risk of the child being subjected to, or exposed to, family violence, is relevant to the defence of “grave risk” of exposure to physical or psychological harm or otherwise placing the child in an intolerable situation (reg 16(3)). 

7. Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children 1996

The Child Protection Convention came into force in Australia on 1 August 2003. It provides for international cooperation between convention countries to recognise protective measures for children. Court orders made in one convention country may be recognised and enforced in other convention countries.  

Section 111CD is a lengthy provision which sets out when a court may exercise jurisdiction for a Commonwealth personal protection measure. Section 111CA defines “Commonwealth personal protection measure” in relation to a child as “a measure within the meaning of the Child Protection Convention under this Act that is directed to the protection of the person of the child.” Under s 111CD(1) of the FLA, the court has jurisdiction to grant personal protection measures if the child is habitually resident in Australia or in certain circumstances where the child is a refugee child and present in Australia. The effect of s 111CD has been to qualify the broad jurisdiction conferred on Australian courts by s 69E of the FLA in regard to parenting orders. As indicated above, determining habitual residence can involve highly technical arguments and it is not a simple concept to apply. A number of authorities confirm that a party must establish the child’s habitual residence in Australia for the court to have jurisdiction to grant personal protection measures e.g. Bunyon & Lewis (No 3) [2013] FamCA 888. 

In Sterling & Sterling [2022] FedCFamC1A 3 the Full Court of the Family Court discussed the operation of the Child Protection Convention in Australia. The Family Law (Child Protection Convention) Regulations 2003 (Cth), were made under Pt XIIIAA, Div 4 of the FLA to give statutory recognition to the Child Protection Convention. The child was present in Australia when the father commenced the Australian proceedings, so jurisdiction existed to entertain his application (s 69E(1)(a)). The question was then whether or not the jurisdiction under s 111CD could be exercised to make the orders for which the father applied, as they fit the description of Commonwealth personal protection measures.

Further complicating issues may arise if the child is habitually resident in a non-convention country. For example, the court has noted that the effect of s 111CD is that it appears that Australian courts do not have jurisdiction unless the child is habitually resident or present in Australia. This has led to somewhat troubling conclusions where the court has been unable to find jurisdiction despite, as in Ahmad & Hadi [2020] FamCA 1041, the child being an Australian citizen and both parents being present in Australia.

As Justice Tree said in Ahmad & Hadi at [69]-[70]:

I should acknowledge that there are some mildly disturbing aspects to this conclusion, not least of which being that an Australian citizen child, of Australian resident and citizen parents, is not amenable to the jurisdiction of Australian courts. More, and rather counter-intuitively, it seems odd that the jurisdiction over him will therefore be exercised by a Pakistani court, by virtue of the ostensible effect of the 1996 Convention, to which that country is not a signatory.

However in reality, that outcome is the result of s 111CD of the Act, which I am not free to ignore or subvert. Whether that provision in its terms was necessitated by the 1996 Convention is a matter I will leave to others to consider; suffice to say it is the binding statutory law of Australia, and no challenge to its constitutionality was advanced before me.

More information is on the following websites:

• https://www.ag.gov.au/families-and-marriage/families/international-family-law-and-children/international-child-protection
• https://www.hcch.net/en/instruments/conventions/specialised-sections/child-protection

8. Overview of property regime in New Zealand

The forum test as between Australia and New Zealand is, in most family law matters, directed by the TTPA and the equivalent New Zealand legislation, the Trans-Tasman Proceedings Act 2010 (NZ). The court must also have jurisdiction under the relevant legislation.

The Property (Relationships) Act 1976 (PRA) sets out the property settlement regime in New Zealand. It provides for deferred community of relationship property. The jurisdictional requirements are set out in s 7 as:

(1) This Act applies to immovable property that is situated in New Zealand.

(2) This Act applies to movable property that is situated in New Zealand or elsewhere, if one of the spouses or partners is domiciled in New Zealand —

(a) at the date of an application made under this Act; or

(b) at the date of any agreement between the spouses or partners relating to the division of their property; or

(c) at the date of his or her death.

(3) Despite subsection (2), if any order under this Act is sought against a person who is neither domiciled nor resident in New Zealand, the court may decline to make an order in respect of any movable property that is situated outside New Zealand.

Overseas property must be classified as either movable or immovable. If one party resides predominantly in New Zealand, New Zealand courts can make orders about movable assets overseas but not immovable property overseas (e.g. land) unless the couple agrees in writing that New Zealand law should apply to that immovable property. 

Relationships covered include married couples, civil unions or de facto relationships of more than three years, or shorter if, for example there was a child of the relationship. Both heterosexual and same sex de facto couples are covered.  

At the end of the relationship, relationship property is generally divided equally if the relationship has lasted for three years or longer. 

“Relationship property” includes the family home and family chattels (whenever obtained) and any other property acquired during the course of the relationship, provided it was not acquired by a party from separate property, was a beneficiary of the trust settled by third party, or by gift, inheritance or survivorship (s 9, s 9A and s 10). Relationship property also includes property acquired by one of the parties immediately before the relationship began, if it was acquired in contemplation of the relationship and was intended for the common use or common benefit of both parties (s 8). 

“Separate property” is all property that is not relationship property, and generally comprises (s 9):

• property owned by a party before the commencement of the relationship;
• property acquired by a party as a beneficiary under a trust settled by third party, or by gift, inheritance or survivorship;
• property acquired out of separate property even if acquired during the relationship. 

Courts have explicit power to make a compensatory adjustment on the division of relationship property on the grounds of significant relationship generated future economic disparity between the parties (ss 15 and 15A). 

In short relationships (of less than 3 years), relationship property is divided in accordance with the contributions of each party if the parties are married (s 14), but no order can be made in relation to a short de facto relationship unless the court is satisfied that there is a child of the relationship or that the applicant made a substantial contribution to the relationship (s 14A(2)(a)). An order can also be made if failure to make an order would result in serious injustice (s 14A(2)(b)).

As in Australia, it is not necessary for an application for divorce to be filed prior to, or contemporaneously with, the application for division of relationship property.

9. Overview of property regime in China – Hong Kong

Hong Kong uses the forum non-conveniens test and largely follows the House of Lords decision Spiliade Marine Corp v Consulex [1978] AC 460. The applicant, seeking a stay of proceedings filed in Hong Kong, must prove that: 

• There is another available forum which is more closely connected to the dispute, and
• That other available forum is more appropriate. 

If the applicant establishes these matters, the burden of proof then shifts to the party who prefers Hong Kong, who must show that they would be deprived of a legitimate personal or juridical advantage if the action is elsewhere.

The jurisdiction of the court to entertain applications for financial relief arises under s 29AE of the Cap. 192 Matrimonial Proceedings and Property Ordinance which includes qualifying factors requiring one of the parties being domiciled in Hong Kong at particular times, being habitually resident in Hong Kong throughout the previous three years or either party having a substantial connection with Hong Kong at a particular time.

The court must consider under s 29AF(1) whether in all the circumstances it is appropriate for the order to be made by a court in Hong Kong and the nine particular factors to which the court must have regard are listed in s 29 AF(2). They include the connection with each jurisdiction, any financial benefits that the applicant or child of the family has received or was likely to receive outside of Hong Kong, any right to apply for financial relief in the jurisdiction outside of Hong Kong, likelihood of compliance and enforceability. 

The Hong Kong court only has power to make property settlement orders upon a decree of divorce or nullity of marriage being made and therefore cannot exercise jurisdiction until a decree of divorce can be made, which is, that the marriage has broken down irretrievably.  This is established under s 11A(2) of the Matrimonial Causes Ordinance by one of:

• unreasonable behaviour;
• adultery;
• desertion;
• one year separation with consent; or 
• two years of separation without consent. 

The property application is called “ancillary relief” and “attached” to the divorce. The jurisdiction to apply for a divorce is therefore more relevant to prospective property settlement applicants in Hong Kong than it is to prospective property settlement applicants in Australia and New Zealand. There are limited circumstances where the court will grant leave to enable financial matters to be dealt with even though the divorce was obtained elsewhere.  

The court has jurisdiction in divorce proceedings under s 3 of the Matrimonial Causes Ordinance if: 

• either of the parties to the marriage was domiciled in Hong Kong at the date of the petition or application;

• either of the parties to the marriage was habitually resident in Hong Kong throughout the period of 3 years immediately preceding the date of the petition or application; or 

• either of the parties to the marriage had a substantial connection with Hong Kong at the date of the petition or application.

Section 7(1) of the Ordinance lists seven factors which the court is required to take into account before exercising its discretion to adjust property in all matters. These are:

• the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;

• the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;

• the standard of living enjoyed by the family before the breakdown of the marriage;

• the age of each party to the marriage and the duration of the marriage;

• any physical or mental disability of either of the parties to the marriage;

• the contributions made by each the parties to the welfare of the family, including any contribution made by looking after the home caring for the family;

• in the case of proceedings for divorce or nullity of marriage, the value to either of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage that party will lose the chance of acquiring.

The principles laid down in cases such as LKW v DD (2010) 13 HKCFAR 582 (which follow English cases such as White v White [2000] UKHL 54; [2001] AC 595) in applying s 7 are:

• fairness between the parties. This notion changes over time and is applied differently;
• rejection of discrimination between the primary breadwinner and the primary homemaker;
• testing against the “yardstick” of equal division;
• discouraging the conduct of minute retrospective investigations.

The process involves considering whether there are good reasons to apply the sharing principle or depart from equality. Importantly, de facto couples, including same-sex couples, have no rights to property or maintenance.

A useful summary of family law in Hong Kong written by Rita Ku and Sharon Ser is in the Chambers Global Practice Guide at www.practiceguides.chambers.com

10. Overview of property regime in China – People’s Republic of China (PRC)

There are two matrimonial property regimes in the People’s Republic of China (PRC). These are the contractual matrimonial property regime and the statutory matrimonial regime. The parties can agree to contract out of the statutory system. 

Divorce is typically a precondition for the division of marital property in the PRC. For example, Article 69 of The Law of the People’s Republic of China on the Protection of Women’s Rights and Interests states:

Upon divorce, the division of the real property jointly owned by spouses or the disposition of the real property jointly rented by them shall be determine by agreement; or either party may file a lawsuit with the people’s court is no such agreement can be reached

Marital property is generally required to be divided equally. Until recently there was no enforceable obligation to make full disclosure of property. 

Relevant amendments to the Law of the People’s Republic of China on the Protection of Women’s Rights and Interests took effect from 1 January 2023. These amendments require that in all divorce proceedings both parties must declare all of their joint property. If a party conceals, transfers, sells, destroys, or squanders any joint property, that party may receive a reduced share. These amendments were introduced to overcome a significant barrier to parties obtaining a fair property settlement, but it is too early to say how successful they will be.

China does not recognise de facto relationships or same sex partnerships, either through marriage or a civil union/partnership. 

Foreign financial orders are generally not recognised or enforced unless there is an applicable international treaty. 

Lan & Hao [2017] FamCAFC 175

The wife appealed against a refusal to grant an anti-suit injunction which would restrain the husband from pursuing proceedings in China. The appeal was dismissed, and the wife was ordered to pay the costs of the husband. Proceedings continued in both Australia and China.

The trial judge was faced with competing applications for anti-suit injunctions. Both applications were dismissed as the property of the parties was spread across Australia and China. The trial judge found that neither court could appropriately deal with the property located in the respective foreign jurisdictions and thus, proceedings should continue in both Australia and in China. Australia was not a “clearly inappropriate forum” for determining the wife’s claim, nor were her proceedings vexatious or oppressive. 

The trial judge’s reasoning for refusing to grant the anti-suit injunction in favour of the wife was that the husband had a “legitimate juridical advantage” in prosecuting proceedings in China. The trial judge also found that there was no utility in granting an anti-suit injunction as it would not be recognised by the Chinese courts.

On appeal, the Full Court found that the trial judge had erred in concluding that the injunction would have no utility. The injunction could be enforced by contravention or contempt proceedings taken against the husband personally in Australia. However, the trial judge was correct in deciding that the husband had a juridical advantage from his proceedings in China and therefore, they could not be held to be vexatious and oppressive. This was the more important ground and so, overall, the trial judge did not err in her decision not to grant the injunction.

The appeal was dismissed. 

Gong & Zao [2021] FamCAFC 110

This was an appeal of a decision by the Family Court of Australia not to dismiss an application for a property settlement in Australia.  The wife contended that property orders made in the People’s Republic of China already covered the parties’ property in Australia. All of the parties’ assets were held in China apart from an investment of AUD $5,030,000 which remained in Australia. The appeal was dismissed despite a finding by the Full Court that the primary judge had erred. 

The Full Court found that the primary judge had applied the wrong test with regard to summary dismissal under s 45A(3) of the FLA. The primary judge had used the test of whether the application was “doomed to fail”. The primary judge should have applied the less stringent test from Ritter & Ritter and Anor [2020] FamCAFC 86 – whether the party had no reasonable prospect of success in prosecuting their application, taking their case at its highest. 

Further, the primary judge did not apply the correct principles regarding the claims of estoppel by the wife. The Full Court found that there was no res judicata and in relation to the claim of estoppel it said (at [28], [40]-[41]):

In this case, this required the appellant, who bore the onus of proof to establish “a factual foundation for the operation of one or other forms of those forms of estoppel” so as to prove that the ruling of the Court in China “had the meaning and determinative operation” for which she contended … . Thus, in order to show that the proceedings in China had dealt with the division of the funds in Australia the appellant had to prove that the division of that asset was an issue before the Court in China, that the Court had legal authority to deal with that division and, finally, that it exercised that authority. …

As we have already explained, the evidence before the Court did not enable us to form the view that there was the requisite correspondence between the proceedings in China and the proceedings in Australia, so that the decision of the Court in China had “the meaning and determinative operation”  …  which meant that the issues raised in Australia had already been determined. 

It follows that there will be a grant of leave but the appeal will be dismissed.

Beng & Kwok [2022] FedCFamC1A 117

The wife sought leave to appeal an anti-suit injunction in regard to proceedings in China. She sought a stay of all Australian proceedings except for those regarding parenting matters. In considering whether to grant leave to appeal, the Full Court relied on the test from Medlow & Medlow (2016) FLC 93-692 (at [57]). Leave will only be granted where the: 

decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court and whether substantial injustice would result if leave were refused, supposing the decision to be wrong

No grounds of appeal were found to be of merit, including the ground related to a stipulation in a financial agreement between the parties that matters under dispute should be resolved in China. There was also an assertion that the trial judge failed to consider difficulty in the ability of the wife to investigate the husband’s financial position in China through the Australian courts. The Full Court agreed with the trial judge’s reasoning (at [136]) that:

an injunction is necessary to protect the Court’s own proceedings and processes to avoid the very outcome that the wife’s counsel submits is possible. A single proceeding will reduce cost and avoid duplicated and inconsistent results. They each deal with the same subject matter arising out of the marriage and complete relief is available in this Court to quell the controversy arising out of their marriage.

The application for leave was rejected and the wife ordered to pay the costs of the husband up to a fixed sum of $7,000.

Lorde & Chu (No 2) [2018] FamCA 688

The wife had a small superannuation interest in Australia, but otherwise the only identified property (including the parties’ family home) was in China. Justice Gill held that where there was uncertainty as to each step under s 79 including as to the value of the property and the nature and extent of contributions made by each of the parties, it could not be determined that any particular order was either just and equitable or appropriate as required by s 79 and Stanford & Stanford [2012] HCA 52; (2012) FLC 93-518. In other words, where the bulk of the parties’ property is overseas may result in the court determining that no property settlement order should be made a consideration of the basic principles for the alternation of property interests.

11. Overview of property regime in England & Wales

England and Wales apply the forum non conveniens test to determine jurisdiction. The Matrimonial Causes Act 1973 sets out a list of principles to be considered. The Spiliade case referred to above, and later authorities, deal with the test. 

Courts can hear property financial claims after a foreign divorce if the requirements of Pt III of the Matrimonial and Family Proceedings Act 1984 (UK) are met. The 3 alternative requirements are the residence or habitual residence of either of the parties at particular times or that either or both of the parties had a beneficial interest in a house which had been at some time the parties’ matrimonial home (s 15) and requires the court to consider the factors listed in s 16. 

In England and Wales, the type of relationship is important. Married relationships which breakdown are covered by the Matrimonial Causes Act 1973. The breakdown of civil partnerships is dealt with under the Civil Partnership Act 2004. However, the remedies available are largely the same under each Act. The original purpose of the Civil Partnership Act was to allow same-sex couples to have their relationship legally recognized, but since 2019 heterosexual couples can have their relationships recognised under that Act as well. De facto relationships which are not registered carry no legislative rights and the parties must rely upon equitable principles such as constructive trusts and proprietary estoppel. Claims may be made under the Trusts of Land and Appointment of Trustees Act 1996.

Property adjustment orders under s 24 of the Matrimonial Causes Act can only be made at the same time as, or following, the making of a divorce, nullity or separation order. They cannot be made before divorce.

Traditionally, England has been seen as a jurisdiction where at the end of a long marriage, a 50/50 division of property was the norm, but maintenance orders were often made for lengthy periods. The factors considered in determining property settlements are set out in s 25 of the Matrimonial Causes Act and they appear fairly similar to the principles set out in the FLA. There is, however, greater emphasis placed by the courts on:

• the needs of children;
• a starting point of equality which applies unless there is good reason for there not to be an equal division;
• fairness; and 
• compensation. 

Inherited assets, gifts and assets acquired prior to the relationship or after separation may be non-matrimonial assets. Factors considered in determining whether this exclusion applies include how the asset was treated by the parties during the relationship (Was it mingled with other assets? Did both parties use it?) and if the parties’ needs can be met if that asset is excluded. The landmark case is White v White [2000] UKHL 54; [2001] AC 595.

Section 25 states in part:

(1) It shall be the duty of the court in deciding whether to exercise its powers … and, if so, in what manner, to have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen.

(2) As regards the exercise of the powers of the court … in relation to a party to the marriage, the court shall in particular have regard to the following matters—

(a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;

(b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;

(c) the standard of living enjoyed by the family before the breakdown of the marriage;

(d) the age of each party to the marriage and the duration of the marriage;

(e) any physical or mental disability of either of the parties to the marriage;

(f) the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;

(g) the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;

(h) in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.

Kornfeld & Wehinger [2023] FedCFamC1F 817

The wife filed proceedings for divorce and financial relief in the United Kingdom in March 2023. Subsequently, in April 2023, the husband filed proceedings in Australia for financial and parenting orders as well as an Application for Divorce. The wife was living in Australia with the children and the husband resided in the UK. The wife was an Australian and British dual citizen. The husband was a British citizen and a permanent resident of Australia. The parties married in Australia and lived periods of their relationship in both Australia and the UK.

The husband sought an anti-suit injunction against the wife with respect to her proceeding in the UK. The wife subsequently applied to stay the husband’s proceedings on the ground that the Australian forum was clearly inappropriate. Both parties agreed that the courts in both Australia and the UK had jurisdiction to determine the financial issues between them. During the hearing, the wife conceded the appropriate forum to determine the parenting proceedings was Australia. 

The bulk of the parties’ property was in England. The husband had assets exclusively in the UK which included real properties, entitlements to pension and/or superannuation funds and an entitlement as a beneficiary to a trust. The wife’s assets were located in Australia and comprised a real property purchased by her subsequent to separation, entitlements in an accumulation superannuation fund and an entitlement as a beneficiary of her father’s discretionary family trust.

The enforceability of an FLA order in England was discussed in the judgment. The three experts agreed that, in relation to capital, the wife had two options. First, she could rely on the Foreign Judgments (Reciprocal Enforcement) Act 1933 (UK) to which Australia is a participating country. This would enable her to register any final lump sum orders made in Australia in the King’s Bench Division. By this route, registration was a right as the UK court had no discretion not to register. The process was relatively straightforward. The application was made to the King’s Bench Division and made without notice to a Master supported by written evidence. The registration order was then drawn up by the judgment creditor and served on the debtor. The order would be enforceable as if it had been made in the United Kingdom.

Additionally, the wife could apply under Part III of the Matrimonial and Family Proceedings Act 1984 (UK) for orders to be made by way of natural provision following a foreign divorce, in a similar manner as pension sharing orders could be obtained. In relation to the husband’s UK pension, the wife needed pension sharing orders to be made in the UK as she could not rely upon an Australian order to be effective. A further application would need to be made to the UK court under the Matrimonial and Family Proceedings Act 1984 (UK) in relation to the UK pension. That application was a two-step process requiring leave of the court.

All three experts agreed the procedure prescribed by the Foreign Judgments (Reciprocal Enforcement) Act 1933 (UK) was theoretically open to the wife in the event of a default, however none were able to provide any authority or were aware of any cases when such a procedure had been successfully utilised to enforce a foreign judgment for payment of a capital sum. There was no evidence as to the efficacy of the procedure in terms of timeframe, ease, complexity and potential costs. The registration process did not provide any other relief such as transfers of property on default or the enforcement procedure available under s 106A of the FLA.

The issue of the husband’s pension interest in his family company superannuation fund was held by Justice Williams as likely to be contentious as the husband asserted that other family members had interests in it. Justice Williams considered that the wife might face significant hurdles in relation to disclosure regarding the superannuation fund and the husband’s family trust, although she acknowledged that the husband’s position was that he would comply with his disclosure obligations. The wife’s financial position in Australia appeared to be more straight forward than the husband’s position in the UK. 

Justice Williams held (at [117], [122]-[124]):

There is a real and cogent difficulty in relation to property orders if they are made in Australia. The only order which all experts agree is likely to be readily recognised and enforced in the UK is an order in relation to payment of money…

The difficulty of recognition and enforcement of interests in real property and pension funds is particularly pertinent in this matter because of the husband’s asserted interest in his family’s superannuation fund, as opposed to the wife’s interest in an accumulation fund in Australia.

In regard to the competing applications to stay the other parties divorce applications, if the wife’s divorce application proceeds in the UK court, then that court will have the unfettered power to make a raft of orders in the financial proceedings, albeit in a staggered timetable. That will result in one set of financial proceedings in the UK.

On the other hand, if the husband is permitted to proceed with his divorce in this jurisdiction, then at the conclusion of financial proceedings in Australia one of the parties, presumably the wife, will have to seek leave to apply for orders in relation to property in the United Kingdom to obtain a full range of orders to enforce any property orders made by this Court or to possibly obtain orders splitting the husband’s UK pension entitlements. According to Mr K, that involves a two-stage process with two distinct applications and two separate statements of evidence which will result in the wife incurring further costs and consists further delay. This will result in the wife being required to sequentially conduct two sets of financial proceedings. The further set of financial proceedings which the wife will face is seriously and unfairly burdensome and will incur significant costs for both parties. It will also delay the final resolution of the controversy between them.

A determination was made that Australia was a clearly inappropriate forum for the divorce and financial proceedings and the Husband’s application was permanently stayed. 

12. Overview of property regime in Scotland

The Family Law (Scotland) Act 1985 sets out how financial resources and property are divided upon separation. The main objective is to effect a clean break between the parties of “matrimonial property” which includes any property of either party which was acquired by them prior to or during the marriage for use as a family home or to furnish the family home.  

In determining what order should be made for financial provision, s 9 Family Law (Scotland) Act 1985, requires the consideration of: 

• any economic burden of caring after the end of the cohabitation, for a child when the cohabitants are parents (s 9(1)(c));
• whether (and if so to what extent) either cohabitant has derived economic advantage from the contributions made by the other (s 9(1)(b));
• whether (and if so, to what extent) either cohabitant has suffered economic disadvantage in the interests of the other cohabitant or any relevant child (s 9(1)(b)). 

There is also a presumption of sharing equally in household goods and certain expenses related to the household (s 25(1) Family Law (Scotland) Act 1985). 

Scotland recognizes the property rights of cohabitants, but these are different to those of parties who are married or in civil unions. A cohabitant cannot seek a transfer of property but may be able to make a claim. The matters considered in determining whether a cohabitant can make a claim include:

• whether (and if so, to what extent) the defender has derived economic advantage from contributions made by the applicant; and
• whether (and if so, that what extent) the applicant has suffered economic disadvantage in the interests of the defender in the interests of the defender or any relevant child.

The Scottish Law Commission is undertaking a review of aspects of family law and there is some helpful material on their website www.scotlawcom.gov.uk.

Maintenance is less common in Scotland than in England and if ordered will likely only be for a short period while property matters are resolved, rather than on an ongoing basis. 

13. Property regime in the United States of America

Unlike Australia, Federal law in the United States of America doesn’t cover family law, so the laws vary from state to state. The most common regimes are broadly: 

• • Community property – couples are required to spit equally all property acquired during the relationship. The states which have this law are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. Five other states – Alaska, Florida, Kentucky, South Dakota, and Tennessee – have an opt-in community property law. The states with community property regime each have different rules about exceptions and some have considerations of “fairness”; 

• Equitable distribution – the court divides the property as it thinks fair. The court takes into account such factors as the amount of non-marital property each spouse has, their respective earning capacities, services as a homemaker, waste and dissipation, fault, duration of the marriage, and age and health of the parties.

Additional complications arise where property is held in more than one state. Common law marriages (similar to but not the same as de facto relationship) are recognised in some states  — Colorado, Iowa, Kansas, Montana, Rhode Island, Texas, Utah, Oklahoma and the District of Columbia. In these states, common law marriage gives the same rights as a legal marriage.

Draper & Corwin [2022] FedCFamC1F 626

The contested issue was the appropriate forum to determine for the parties’ divorce and extant property settlement proceedings. Parties had already agreed that parenting proceedings occur in Australia. The wife sought that any property settlement proceedings be litigated in Melbourne, Australia where she was residing with the child of the relationship. The husband sought that the proceedings be litigated in State J of the United States of America which was where he was residing.

Justice Harnett applied the “inappropriate forum test” from Voth. The husband argued that if the divorce proceedings were to occur in Australia, it would restrict him from having the parties’ financial proceeding heard in J State. The wife sought an equal split of property and asserted that the husband had not put forward any financial issues to be heard in Court proceedings in J State. The husband argued that the parties had assets, debts and property in J State. The wife denied that the parties had any property of any significance in J State and none that could not be dealt with in Australia. 

Harnett J said that proceedings in J State would be extremely costly, particularly given the parties would require two sets of legal fees as a result of the parenting proceedings taking place in Australia. Further, Harnett J found that the parties would be on a fairly equal footing if the property proceedings were heard in Australia with the parenting proceedings. Should the property proceedings occur in J State, the wife would incur significant difficulty, particularly given her care of the parties’ child in Australia. 

The FCFCOA was held not to be a “clearly inappropriate forum” nor would it be vexatious or oppressive for the property proceedings to occur in Australia. The husband was ordered to withdraw his property and divorce proceedings in J State. 

14. Overview of parenting regime in China – Hong Kong

The paramount consideration under Capo 13 Guardianship of Minors Ordinance is the best interests of the child (s 3(1)). Custody may be granted to one or both parents but there is no concept of “parental responsibility” as in Australia. Generally, “care and control” of a child is only given to one parent solely. However, the law is different for families where the parents are married and those who are not, limiting the rights of fathers of “illegitimate children” (s 21). 

There have been proposals to revise parenting law for almost 2 decades. The Children’s (Parental Responsibility) Bill proposed to emphasise parental responsibilities rather than rights and move away from the concepts of “custody”, “care and control” and “access”. There is a good discussion of the current and proposed changes in a letter from the Hong Kong Bar Association to the Panel on Welfare Services dated 29 June 2023 (downloaded from www.legco.gov.hk). 

Hong Kong is a party to the Child Abduction Convention and the Child Protection Convention.

15. Overview of parenting regime in China – PRC

The People’s Republic of China is not a party to either the Hague Child Abduction Convention or the Hague Child Protection Convention. Parenting and maintenance matters are dealt with as part of divorce proceedings. The paramount consideration by the courts is the child’s best interests. 

Chinese courts will not generally deal with family law matters concerning foreigners. There is no system to register or enforce foreign parenting orders. It is usual in China for one parent to have custody of a child and the other parent to have only limited rights to visit the child. Enforcement of parenting orders made in China is also difficult and this is exacerbated by the ease with which a child can be hidden.

Custody of children under 2 years of age is usually granted automatically to the mother of the child unless the parties agree to the father having custody and there is a reason why the mother should not be the sole custodian. 

Killam & Loeng [2015] FamCAFC 41 

The Full Court considered the father’s appeal against orders that parenting proceedings occur in China as opposed to Australia. The father was an Australian citizen who had resided in China for fifteen years. The mother and children had never resided in Australia. The father attempted to keep the children in Australia following a family holiday to Australia. The trial judge ordered that the father allow the children to return to China and that the parenting matters be resolved in China, stating (at [86]) that it was in the best interests of the children to return to their homeland of China and that this return would “promote their welfare”. A relevant factor was the estimated 2-year delay should proceedings occur in Australia. 

The Full Court ordered 2:1 that the father’s appeal be dismissed. In the majority, Justices May and Ainslie-Wallace held that there was no error in rejecting the opinion of the father’s expert witness that the children might be separated by a court in China if the parties could not agree as to their arrangements. This was because the expert witness relied simply upon his “own knowledge and experience” and there was an absence of support for the expert’s assertions. Further, the trial judge considered similarities between the Chinese and Australian Family Courts in regard to the best interests of the children, finding that the Chinese law was “not dissimilar” to that contained in s 60CC of the FLA. Further, at [69], the trial judge held in relation to the regime in China:

• There is no presumption that children live with, be cared for or raised by their mother;

• The interests of children appear to be the focus of the law;

• Parties can agree about arrangements for their children and have those arrangements sanctioned by the court;

• The mother is not the preferred parent at all ages;

• There is no suggestion that “custody” of children would automatically be awarded to the mother; and

• There is no suggestion of any “threshold” to be met by a father before seeking parenting orders.

Lorde v Chu [2015] FamCAFC 3

The mother sought to take the 2 children of the relationship to China for 2 months. The father opposed these orders on a number of grounds including that he believed that the mother may not return the children to Australia. The father had cancelled the Australian passports of the children and requested they be placed on the flight risk Watch list. 

On appeal, the mother was permitted to take the children to China as the Full Court refused to interfere with the discretion of the trial judge. At [39] the Full Court held that:

For [the father’s] appeal to succeed it was necessary that he demonstrate in his grounds of appeal that there was some error made on the part of his Honour within the scope of the principles which govern appellate interference with discretionary judgments. The father was not able to do so, and thus his appeal must be dismissed.

Kwok & Beng (No 2) [2022] FedCFamC1F 263

The mother had commenced proceedings in China concerning the one child of the relationship, and the father resided in Australia. The mother sought a stay of the Australian proceedings. The trial judge, Schonell J, relied on the clearly inappropriate forum test from the case of Henry v Henry (1996) 185 CLR 571 and said (at [50]) that examination of a non-exhaustive list of factors was required to determine whether Australia was a “clearly inappropriate forum”. These factors are listed below:

(1) Whether both courts have jurisdiction. No issue arises unless the courts of each country have jurisdiction;

(2) If yes, will each country recognise orders made by the other? “If the orders of the foreign court will not be recognised in Australia that will ordinarily dispose of any suggestion that the local proceedings should not continue”. If they will be recognised, then “whether any orders may need to be enforced in other countries and, if so, the relative ease with which this can be done” (at 592);

(3) which forum can provide a complete resolution of the matters involved in the parties’ controversy;

(4) “the order in which the proceedings were instituted, the stage which they have reached and the costs that have been incurred” (at 592);

(5) the connection of the parties and their marriage to each jurisdiction;

(6) “whether, having regard to their resources and their understanding of language, the parties are able to participate in the respective proceedings on an equal footing” (at 592–593);

(7) Whether each party has a legitimate, personal or juridical advantage to the forum in which they chose to litigate; and

(8) Any other relevant matter in the circumstances of the case.

Justice Schonell dismissed the application for a stay of the mother’s application for orders but granted on anti-suit injunction against the mother. He held that the mother was unable to establish that the Australian court was “a clearly inappropriate forum” for the proceedings and that all proceedings should take place in Australia. Further, Schonell J held that it was in the best interests of the child for the proceedings to be determined by the Australian court. This was because the child had resided in Australia since the age of 18 months old and attended school in Australia. An anti-suit injunction was made to restrain the wife from continuing proceedings in China as parallel proceedings would be “an entirely undesirable outcome”. This was despite the fact that orders from either jurisdiction were unlikely to be enforceable in the other.

16. Parenting regime in the United States of America

The United States of America (USA) has the Uniform Child Custody Registration and Enforcement Act (UCCJEA) which has been adopted by 49 of the 50 states (not Massachusetts) and makes registration of overseas parenting orders easier than otherwise. 

The USA courts generally have jurisdiction over a child who has been present in a particular state of the USA for the immediate 6 months before the case is filed and there is no action proceeding in any other court regarding custody of the child. There is emergency jurisdiction in cases of domestic violence towards a parent or a child where the residence requirement may be waived. 

Reger & Hanney [2023] FedCFamC1F 805

The chronology of events was:

2021 — X was born in State B in the United States of America, X’s mother is Australian and her father is American.

Mid 2022 — X travelled to Australia with her mother.

Late 2022 — The father followed them to Australia.

Early 2023 — Y was born in Australia.

Early 2023 — X and the father travelled to the USA.

31 May 2023 — The father filed a divorce petition in State B in the USA. He sought parenting orders with respect to both children.

25 July 2023 — The mother filed Hague child abduction application seeking the return of X to Australia. This application had not progressed for reasons which were unclear to the primary judge.

11 September 2023 — The mother filed an Initiating Application in the FCFCOA (Div 2).

12 September 2023 — The mother’s application was transferred to the FCFCOA (Div 1).

20 September 2023 — Urgent interim hearing listed in the FCFCOA due to pending hearing on 21 September 2023 in State B.

There was a dispute as to the habitual residence of X and Justice Williams found that X was habitually resident in Australia when the father took X to the USA. Justice Williams did not make findings as to family violence alleged by the mother but did find that the relationship was volatile.

Justice Williams reviewed the court documents filed in the USA by the father and found that he “did not provide the District Court in State B with a fulsome picture of the jurisdictional issues in the case as required by the State B Family Code”. In particular:

1. State B did not have home state jurisdiction in respect of X at the time the father filed his original petition;
2. The earliest date on which an application might be filed in reliance upon home state jurisdiction is 28 October 2023;
3. It is not apparent how State B would assume home state jurisdiction in respect of Y.

There was a requirement in State B for a child to have at least 6 consecutive months of residence for State B to be the “home state”. 

Justice Christie held that X was habitually resident in Australia saying (at [68]):

Finally, I consider that the fact that there is presently no jurisdiction to hear and determine an application in respect of X in the place where she is present is a relevant factor as one of the wide variety of circumstances… which are relevant to the assessment of whether her residence in the USA may be regarded as habitual. It speaks, as the applicant’s lawyer submitted, to the extent to which it might be thought that she has integrated into that place. It follows that I intend to make the declaration that X is habitually resident in Australia.

Justice Christie held that Australia was not a clearly inappropriate forum and ordered that the father deliver the child X to the mother or to the maternal grandmother at a specific courthouse in State B USA at the time and date nominated by the mother. 

Her Honour’s reasons were summarised (at [73]-[74], [76]-[79]:):

In effect the father is seeking that this court decline to exercise jurisdiction in respect of either child until such time as the Court in State B acquires jurisdiction, perhaps in respect of one child. This position is untenable. The children are separated in circumstances where both parents do not think that ought be the case. X, who until early 2023 had never been separated from her mother, has now been separated from her mother since that time. To decline to exercise jurisdiction could not be in the best interests of these children.

The mother has a prima facie right to invoke the jurisdiction of the court in respect of Y and following my findings in respect of X and hence the onus is on the father to establish that Australia is a clearly inappropriate forum for proceedings about these children…

Here I am not being asked to grant an anti-suit injunction but the father asks that I find that Australia is a clearly inappropriate forum and consequently dismiss the application and so the principles are relevant and in particular to Y who is inside the jurisdiction.

Having determined that I have jurisdiction to hear and application in respect of both children I should note that I am obliged to take into account principles of judicial comity. I am aware that there are proceedings before another court and I should not lightly consider making orders about the same subject matter. The factors which persuade me that it is appropriate to do so in the circumstances of these children are as follows:

• Two infants are separated from one another in circumstances where it is less than clear that both parents intended this to be an ongoing situation;

• There is an urgency in so far as there are no orders for these children and the parents are in dispute;

• The lawyers for the mother intend to apply to register the Australian orders with the State B Court; and

• Most significantly because the State B Court does not presently have jurisdiction.

The mother was in the USA on an Electronic System for Travel Authorisation ESTA (tourist visa) which permitted a stay of three months. The mother overstayed that visa. The father’s material says that for the mother to enter the USA she would need to apply for forgiveness for overstaying her visa. There is no such restriction on the father’s capacity to enter and remain in Australia for the purpose of participating in court proceedings.

The father has conceded that at this present time the child Y should not be separated from the mother and did not seek to invoke the jurisdiction of the State B court through the recent petition in respect of Y. Accordingly the father tacitly accepts that this court has jurisdiction in respect of Y albeit he requests that the Court not exercise it.

Interestingly, in Reger & Hanney (No 2) [2024] FedCFamC1F 63 the final hearing proceeded on an undefended basis. Following the making of the orders on 20 September 2023 which provided that both children live with the mother, the father did not attend court and did not engage in the proceedings.

17. Effect of divorce

Although this paper does not cover divorce, there are some significant issues relevant to the jurisdiction of the Australian courts to make property and maintenance orders. Australia is a contracting state to the Hague Convention on Recognition of Divorce and Legal Separations enacted in 1970. Australia acceded to the Convention and s 104 of the FLA states:

A foreign divorce will be recognised as being valid in Australia if it was effected in accordance with the laws of that foreign jurisdiction and at the date of those proceedings either one or both spouses had a sufficient connection with the foreign jurisdiction.

Despite s 104, an overseas divorce can have a different impact than an Australian divorce on the ability of a party to seek a property settlement under the FLA. Section 44(3) provides that where a “divorce order” has been made, proceedings for property settlement shall not be instituted (except with leave of the court or the consent of both parties) after the expiration of 12 months following the order coming into effect. In Anderson & McIntosh (2013) FLC 93-568 the Full Court considered whether s 44(3) applied to applications made under s 79 where the parties had been divorced overseas. The parties were divorced and orders for property settlement were made overseas in relation to foreign property but not on relation to property in Australia. The wife’s application for property settlement in the then Family Court of Australia was filed more than 12 months after the date of the foreign divorce. The husband sought that the wife’s application be dismissed as she had not obtained leave pursuant to s 44(3). The trial judge determined that the wife did not need leave. The appeal against this decision was dismissed.

A second issue related to divorce is that in some overseas jurisdictions, such as Hong Kong, obtaining an Australian divorce may make it difficult or impossible to obtain a property settlement (or parenting orders) in the overseas jurisdiction because the property settlement and any parenting proceedings are considered to be ancillary to the divorce. 

De facto and other relationships

The rights of parties who are not legally married can vary between jurisdictions. Important matters to consider include:

• Do couples who are not legally married have any rights at all? There is no jurisdiction in some countries eg. Italy, Poland, Spain, Philippines, Malta, many States of the USA and many countries in Asia and the Middle East.  
• Are same sex couples covered? 
• What types of relationships are covered? eg. common law marriages, cohabitants, de facto relationships.
• What is the definition. Comparing Australia and New Zealand, the factors to be considered as to whether a de facto relationship exists under s 2D of the PRA are the same as under s 4AA of the FLA. But there is still a significant distinction between the two countries. Under s 2E of the PRA the relationship must normally be for 3 years to create property rights, whereas under the FLA the relationship must normally be for 2 years.

18. Superannuation and pensions

If Australian superannuation is to be split, an Australian order or financial agreement is required and there are technical requirements which must be met. If orders are made overseas with respect to non-superannuation property, an Australian order or agreement will also be required to effect any split. It is generally easier and more straight-forward to use a superannuation agreement so the parties do not have to satisfy the court that the split is just and equitable under s 79 or s 90SM of the FLA.  

New Zealand 

In New Zealand, the KiwiSaver scheme is very similar to Australian superannuation. New Zealand Superannuation (NZ Super) is a universal pension payment for New Zealand citizens or residents aged over 65. Savings under KiwiSaver will fall under relationship property to be divided (s8(1)(i) PRA). Any increase during the relationship, but only the increase, in value will be subject to division. Parties must file a joint application to the Court for a splitting order so that the relevant fund can action the split.  

Trans-Tasman portability of superannuation was made possible from 1 July 2013. A KiwiSaver member can make a complete transfer of their retirement savings to an eligible Australian superannuation fund. Accessibility of the funds will, to some extent, remain subject to New Zealand laws. 

China – PRC and Hong Kong 

China previously operated a two-tier pension system. In 2022, they introduced a tax-deferred individual retirement account system. 

In Hong Kong, citizens have access to a Mandatory Provident Fund (MPF), a compulsory saving scheme. The court cannot make orders to share pensions, including the MPF. The value of the MPF will be included in matrimonial assets, but the fund itself must be retained by the original owner. Under s 7(1)(g) of the Matrimonial Proceedings and Property Ordinance, the court considers the value of any benefit that a party will lose the chance of acquiring, and this includes future pension benefits. 

England

An English pension sharing order is required before an English pension can be divided. If a property settlement is obtained in a foreign jurisdiction, an order can also be made under Part III Matrimonial and Family Proceedings Act 1984 dealing with the pension provided that:

• At least one of the parties has not remarried (s 12(2)); and 
• Either party is domiciled in England and Wales on the date of the application for leave or is so domiciled when the foreign divorce took effect, or habitually resident is England and Wales for the year ending with those dates (s 15(1)).

A UK personal pension fund can be transferred to an Australian pension scheme which qualifies as a QROPS – a qualifying recognised overseas pension – provided the pension funds are a minimum of £20,000. Most UK pension arrangements can be transferred except for UK state pensions and unfunded civil service pensions (e.g. teachers, fire fighters, police and armed forces). There may be 25% tax payable but there are exceptions including residence of the country of transfer. 

United States of America 

There are different types of employment-related superannuation interests in the USA. The most common are pension funds and 401(k), but there are also individual retirement accounts (IRAs) and 403(b)s.  Pensions are similar to our defined benefit schemes and 401(k)s are similar to our accumulated superannuation interests. There is nothing similar to self-managed super funds and there can be tax consequences of these for parties who are caught by the USA tax regime. 

The most common way to divide superannuation applies to 401(k)s is through a Qualified Domestic Relations Order (QDRO). These are used for private-sector employer plans, government and church retirement plans have similar documents with different names and requirements: for example federal agencies require a Court Order Acceptable for Processing (COAP). The QDRO must be approved by the fund before it is enforceable. If the spouse dies, remarries or withdraws benefits before it is submitted it will not be enforceable. 

When and how to seek specialist assistance

You should seek assistance before you issue proceedings in Australia. The most obvious place to look for advice is the International Academy of Family Lawyers (IAFL) website: www.iafl.com

There is a search facility to locate lawyers in different jurisdictions and there are short biographies can you check if they specialise in particular areas.  

A local IAFL Fellow may be able to refer you to someone they have dealt with.

In the first instance, the client may need general advice regarding options, and may need that lawyer to act for them on an ongoing basis, but a lawyer in the other jurisdiction may also be required to give expert and specific advice as to the client’s particular circumstances or evidence before the Australian court is either a single expert or an adversarial expert. 

19. Tips and tricks

1. Consider all aspects of the case – divorce, parenting, property, child support, maintenance.
2. Check jurisdictional consequences before parties apply for a divorce in Australia or elsewhere.
3. Compare time limits. They may not be the same as in Australia. For how long have the parties been separated or divorced?
4. What extra rights does a party have (or not have) in each jurisdiction? For example:

1. Will all property be able to be dealt with? 
2. Disclosure or discovery rights;
3. Protection of pre-cohabitation contributions;
4. Can transactions be undone as in s 106B FLA? In England, s 37 MCA is the equivalent.

1. Consider jurisdiction:
   1. Does the FCFCOA have jurisdiction to determine the case?
   2. Is there a foreign jurisdiction that also has jurisdiction?
   3. What test applies in Australia? 
   4. Are there any advantages or disadvantages for either party to the case being heard in Australia or in the jurisdiction outside of Australia?
   5. Does an Australian judgment or court order need to be enforced in the other jurisdiction and if so, can it be enforced? 
2. Think carefully about superannuation:
   1.  Where is it? 
   2. Does it need to be split or shared? 
   3. Must an order or agreement be obtained in the jurisdiction of the superannuation?
   4. Will an in personam order be effective? 
3. Rights of de facto parties – heterosexual and same sex – there may be no jurisdiction at all in the overseas jurisdiction. 
4. Timing – Is it important to get in first? 
5. Should your client seek:
   1.  a stay?
   2. an anti-suit injunction?
6. Does your client need advice from an overseas lawyer? If so, consider carefully the basis upon which the lawyer is engaged. Are they acting for the client or engaged as an expert to give evidence to the court? 
7. Do not make the assumption that foreign legislation that looks like the FLA is interpreted the same way by the courts.

20. References

• “Property Settlements Involving International Issues” Seminar Paper, 8 March 2018 John Spender, Kennedy Partners
• “Australian Treaties and International Agreements” Jacky Campbell, Introduction to International Law, IAFL Sydney, February 2019
• Chambers Practice Guides – Family Law 2024 www.practiceguides.chambers.com
• “Family Global Guide”, James Stewart, Thomson Reuters (“The Blue Book”) (This book was not used in the preparation of this paper)
• “Jurisdiction to Make Parenting Orders in Australia – The Impact of the 1996 Hague Convention” Amanda Humphreys, Australian Family Lawyer, August 2021, Volume 30/2

Thank you to Emma Jelavic and Alex Lightfoot, paralegals with Forte Family Lawyers, for their assistance with this paper. 

© 2024 Copyright – Jacqueline Campbell of Forte Family Lawyers and Wolters Kluwer/CCH. This paper uses some material written for publication in Wolters Kluwer/CCH Australian Family Law and Practice. The material is used with the kind permission of Wolters Kluwer/CCH.