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. In cross-border disputes after relationship breakdown, where you litigate can impact outcomes. This paper looks at how jurisdictional and forum issues are dealt with in cross-border family law disputes in Australia.

Scope of this paper

This paper focuses on divorce, property settlement and parenting cross-border jurisdictional disputes under the Family Law Act 1975 (Cth) (‘FLA’).

In most jurisdictions, family law property orders can only be enforced by non-family law means. Child support obligations are frequently recognised in other jurisdictions. For example, Hong Kong, New Zealand, India, Malaysia, Singapore, Sri Lanka, the United Kingdom, 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 made in Australia are more likely to be easier to register in overseas jurisdictions than property orders.

It is beyond the scope of this paper to deal with enforcement of child support, child maintenance, spousal maintenance, and international relocation. Enforcement of orders is not dealt with in detail but may be a factor in deciding where litigation should occur. 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 2024 (Pt 10, Division 2 for Service Convention countries and Pt 10 Division 3 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.

What is “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 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
whether a court will grant a stay application to restrain an application from proceeding
in which jurisdiction might the proceedings be able to be heard and determined first

Forum tests in Australia

Jurisdiction of the FCFCOA

The jurisdiction of the Federal Circuit and Family Court of Australia (FCFCOA) (both Division 1 and Division 2) can include persons or things outside Australia. Section 25 (for Div 1) (and the similarly worded s 131 for Div 2) Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) 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…; 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…; 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 FLA excludes child and spousal maintenance obligations where the payee is habitually resident in New Zealand.

In Gould & Gould v Swire Investments Ltd (1993) FLC 92-434; [1993] FamCA 126 the former section (the predecessor section to ss 25 and 131 FCFCOA Act, being s 131 FLA, was referred to in this case, but it was similarly worded) 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 (e.g. 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.

Divorce

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 s 79 FLA or spousal maintenance under s 74 FLA. The effect of s 44(3) FLA is that where an Australian divorce order has been made, proceedings for property settlement or spousal maintenance cannot 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. A divorce order made pursuant to the laws of another jurisdiction does not have the same limitation on the right to bring property or maintenance proceedings in Australia.

In Anderson & McIntosh (2013) FLC 93-568 the Full Court of the Family Court of Australia had considered whether s 44(3) FLA applied to applications made under s 79 FLA 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 in 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) FLA. The trial judge determined that the wife did not need leave. An appeal against this decision was dismissed.

A second issue related to divorce is that in many overseas jurisdictions, such as Hong Kong, India, Singapore, Indonesia and France, 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. Once a particular jurisdiction has granted a divorce, then it has jurisdiction with respect to all other matters related to that family.

Requirements for Australian divorce

The court is satisfied that parties have lived separately and apart for 12 months (s 48(1)).
As of the date of the filing of the application, either party to the marriage:
1. is an Australian citizen; or
2. is domiciled in Australia; or
3. is ordinarily resident in Australia and has been so resident for 1 year immediately preceding the date of filing (s 39(3)).

One impact of these requirements is that parties do not need to be resident in Australia to obtain a divorce in Australia. It is sufficient for one party, who may not be the applicant for the divorce, to be a citizen of 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.

Relevant factors in determining whether the Australian court is “a clearly inappropriate forum” are:

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 juridical 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, … 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 FLA is set out in s 69E FLA. 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) FLA to include an adopted and a stillborn child. “Relevant day” is defined in s 69E(2) FLA 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 in determining whether Australia or New Zealand is the more appropriate forum:

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….”

Part 3 of the TTPA deals with “civil proceedings” which are defined in s 4 TTPA 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).

Other forum considerations

In many countries other than 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. There can also be more geographically specific forum tests such as the Brussels Convention which impacts the European Union and the European Fee Trade Association.

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.

Lex Situs

Lex Situs is a rule of private international law that governs rights in immovable property. The rule is applied so that right to land and buildings are governed by the law of their location.

Mozambique Rule

The Mozambique Rule is a rule of private international law which applies in many common law jurisdictions and 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 is not strictly applied in Australia, which means that Australian Courts, unlike some foreign courts (such as in England), may be 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, or at least very difficult.

The Australian court may have jurisdiction to make an order dealing with real estate or other immoveable property, 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.

Stay orders 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

Kent & Kent 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 which is a requirement for an Australian divorce.

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])

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:

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)).

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 FLA is a lengthy provision which sets out when a court may exercise jurisdiction for a Commonwealth personal protection measure. Section 111CA FLA 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) 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. 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) FLA). 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:

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? De facto couples have no property or maintenance rights in many 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 non-married relationships are covered? Eg. common law marriages, cohabitants, de facto relationships. What are the requirements to access those rights?
Australia and New Zealand lead the way giving rights to non-married couples but the requirements in the two countries are not the same. The factors to be considered as to whether a de facto relationship exists under s 2D of the Property (Relationship) Act 1976 (NZ) (PRA) are the same as under s 4AA of the FLA, but 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.

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.

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).

If a party has overseas superannuation (usually called a “pension”) the options are:

The superannuation cannot be given a value and is not property. It may be considered to be a financial resource of the party with the entitlements.
The superannuation can be given a value but cannot be divided between the parties. It will be a matter of expert evidence as to whether it is considered to be property or a financial resource.
The superannuation can be divided between the parties, but the parties need to apply in the overseas jurisdiction for this to occur (e.g. England, United States of America). The parties might include a notation in the Australian orders as to whether they intend for this to occur or the non-member will waive their rights.

Pre-nuptial and other financial agreements

There are heavy technical requirements for pre-nuptial and other financial agreements in Australia. A pre-nuptial agreement entered into in an overseas jurisdiction may not meet these requirements. For example, there is a requirement that each party be given independent legal advice from a legal practitioner who holds a practising certificate under the Legal Profession Uniform Law. F Firm & Ruane and Ors (2014) FLC 93-611, [2014] FLCA FC189.

The advice given is set out in s 90G(1)(b) FLA:

“Subject to subsection (1A), a financial agreement is binding on the parties to the agreement if, and only if:

(b) before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement;…”

If the technical requirements are not met, the agreement may be able to be “saved” under s 90G(1A) FLA if the court finds that “it would be unjust and inequitable of the agreement were no binding on the spouse parties to the agreement (disregarding any changes in circumstances from the time the agreement was made).” Alternatively, the court might also find, if the parties have abided by the terms of the agreement, that they had agreed to arrange their affairs in a certain manner and it would not be just and equitable for the court to interfere with that arrangement and alter the parties’ legal and equitable interests under s 79 FLA. In these circumstances the pre-nuptial agreement is not enforceable but it may be evidence of the parties’ agreement (Stanford v Stanford [2012] HCA 52; (2012) FLC 93-518).

Recent cases

Lan & Hao (No 2) (2017) FLC 93-795; [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 other 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 the wife’s proceedings vexatious or oppressive.

The trial judge’s reasoning for refusing to grant the anti-suit injunction in favour of the wife was in part 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 of the Family Court of Australia held 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.

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 FLA 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, if the bulk of the parties’ property is overseas this may result in the court determining that no property settlement order can be made in Australia, not on the basis of the forum test, but because s 79 cannot be applied.

Gong & Zao (2021) FLC 94-032; [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 held 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) FLC 93-957; [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 held 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) FLC 94-096; [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 [2016] FamCAFC 34 (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 disputed matters 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.

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

The mother commenced proceedings in China concerning the one child of the relationship. The child and the father resided in Australia and the father had commenced proceedings 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:

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

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);

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

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

the connection of the parties and their marriage to each jurisdiction;

“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);

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

Any other relevant matter in the circumstances of the case”.

Justice Schonell dismissed the application for a stay of the mother’s application, but granted an 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 parenting orders from either jurisdiction were unlikely to be enforceable in the other.

Draper & Corwin [2022] FedCFamC1F 626

The contested issue was the appropriate forum to determine the parties’ divorce and extant property settlement proceedings. The parties had already agreed that parenting proceedings occur in Australia. The wife sought that any divorce and property settlement proceedings be litigated in Melbourne, Australia where she was residing with the child of the relationship. The husband sought that the divorce 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 State J. The wife sought an equal split of property and asserted that the husband had not put forward any financial issues to be heard in State J. The husband argued that the parties had assets, debts and property in State J. The wife denied that the parties had any property of any significance in State J and none that could not be dealt with in Australia.

Harnett J said that proceedings in State J would be extremely costly, particularly given the parties had parenting proceedings in Australia. Further, Harnett J found that the parties were on a fairly equal footing if the property proceedings were heard in Australia with the parenting proceedings. Should the property proceedings occur in State J, 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 State J.

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 United Kingdom (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 during their relationship they lived for periods in each of Australia and the UK.

The husband sought an anti-suit injunction against the wife with respect to her proceedings 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 enabled 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 orders. 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 in Australia was permanently stayed.

Sweeney & Burniss (2024) FLC 94-205; [2024] FedCFamC1A 145

This appeal concerned property proceedings in the FCFCOA. There were concurrent proceedings in Country B relating to child maintenance, parenting and divorce, including division of matrimonial property and spousal maintenance. It was agreed that the child maintenance and parenting proceedings would continue in Country B. The parties both lived in Country B and intended to continue living there.

In December 2023, the Australian property settlement proceedings were permanently stayed by the primary judge, who found that the Australian court was a clearly inappropriate forum for the proceedings. This order was appealed by the wife.

Leave to appeal was refused and the appeal was dismissed. The Full Court of the FCFCOA held that (at [20]) it was:

“not persuaded that the primary judge applied the more appropriate forum test and we consider that she considered, as she was required to do, whether, in all the circumstances of the case, Australia is a clearly inappropriate forum for the determination of property settlement proceedings between the parties …”

Relevant factors considered in reaching this decision included:

Whilst the agitation of a different cause of action, such as that for parenting orders, in another forum did not preclude the continuation of property settlement proceedings in Australia, the absence of such a preclusion did not mandate the conclusion that Australia was not a clearly inappropriate forum.
It was, clearly open to the primary judge to find that the parties had limited connection with Australia.
The likelihood of parallel proceedings in 2 countries in relation to property adjustment. This can be oppressive or vexatious and courts should strive to avoid that situation.
At the time of the primary hearing, the parties had already spent a total of $334,723 in legal costs in the Australian proceedings, which had only commenced in late July 2023. The primary judge inferred that a continuation of property proceedings in Australia, at the same time as the child maintenance proceedings and proceedings to resolve the parenting issues continued in Country B, would involve additional legal costs.

The appellant was ordered to pay costs in the sum of $92,586.

There was a dispute before the Full Court as to whether Obannon & Scarffe (2021) FLC 94-009; [2021] FamCAFC 33 was clearly wrong. The Full Court held that as the point was not raised at trial, it could not be raised on appeal. In Obannon, the wife successfully appealed the primary judge’s decision to grant an anti-suit injunction against the wife in respect of all proceedings commenced by her in Singapore. The majority of the parties’ property, including real property, was in Australia. The wife, and the parties’ three children, were in Singapore. While the wife had commenced property, parenting, child support, spousal maintenance and divorce proceedings in Singapore, the husband had only sought an anti-suit injunction in respect of the property proceedings. It was accepted by the husband that the primary judge’s decision to grant an anti-suit injunction in respect of the entirety of the Singaporean proceedings amounted to a failure to provide procedural fairness.

Additionally, the Full Court of the Family Court held, among other things, that the primary judge had erred in concluding that Australia was the more preferable forum over Singapore because enforcing in personam orders made in Singapore would be “problematic” in Australia. The plurality relied on s 78 FLA which gives the ability of the court to declare property interests rather than to alter property interests under s 79. The plurality noted that, pursuant to s 78 FLA, in personam orders made in a foreign court declaring property interests are enforceable (at [116]):

“We consider that the primary judge erred in principle in concluding that orders in Singapore “are likely to be of little utility”. As was discussed in [earlier cases] s 78 of the Act allowing for declarations of interests in property is an available means of enforcement of foreign orders. Further, the effect of a final property settlement order of a court of competent jurisdiction was discussed in Caddy and Miller.”

The correctness of Obannon has not been determined although the point was raised in such cases as Sweeney & Burniss [2024] FedCFamC1A 145.

Adams & Marchenko [2025] FedCFamC1A 197

Both parties were permanent residents of Australia, however neither were citizens. The wife was a citizen of Singapore, and the husband was a citizen of Country D. The parties lived predominantly in Australia during their relationship. Whilst the husband remained in Australia post-separation, the wife returned to Singapore. The parties held property in both Australia (estimated $20 million) and Singapore (estimated $254 million). The wife’s case was that the property held in Singapore consisted entirely of the inheritance she received upon her father’s death.

In July 2024, the husband commenced proceedings in Australia, seeking interim and final property orders. In October 2024, the wife applied for a stay of the Australian proceedings. In February 2025, the wife commenced proceedings in Singapore. Among the orders sought by the wife was an anti-suit injunction against the husband, restraining him from continuing proceedings in Australia. In response, the husband sought an anti-suit injunction against the wife in the FCFCOA, to restrain her from continuing the Singaporean proceedings.

The wife’s stay application was heard by the FCFCOA in May 2025. The primary judge granted the stay application. The primary judge held that the FCFCOA was a clearly inappropriate forum on the basis that the Singaporean courts were better suited to resolving the dispute. The primary judge’s reasoning was largely based on the fact that neither the Singaporean or Australian courts could make orders in rem for property held in the other country, and the majority of the property was held in Singapore. As the stay had been granted, the need to determine the husband’s anti-suit injunction fell away.

The husband successfully appealed. The Full Court (consisting of Chief Justice Alstergren and Justice Austin and Schonell) unanimously held that the primary judge had erred in applying the “clearly inappropriate forum” test, based upon the primary judge’s finding that the Australian courts were clearly inappropriate merely because the Singaporean courts were better suited to resolving the dispute. At [39], their Honours pointed to a number of factors/features identified by the primary judge that suggested that, whilst the Singaporean courts may be better suited, the Australian courts were not clearly inappropriate. These included:

The husband had commenced proceedings in Australia some seven months before the wife commenced proceedings in Singapore. Their Honours clarified that this was not, of itself, a dispositive feature.
The ability for the Singaporean court to resolve the property dispute between the parties was contingent on a divorce being granted in Singapore. Conversely, in Australia property proceedings are not contingent on a divorce order. It was noted that divorce applications had been filed in both jurisdictions, but filed in Australia first.
The parties were permanent residents of Australia, lived in Australia for the majority of their marriage, still conducted business in Australia and had valuable property interests in Australia.
The Australian proceedings were advantageous to the husband as they offered him forms of relief not available to him in the Singaporean proceedings:
1. In Australia, the wife’s inherited wealth could be treated as part of the property available for distribution. Conversely, in Singapore, the inheritance would be treated as separate unless it had been converted into matrimonial property. This was important, given the wife’s position that her inheritance made up the entirety of the property held in Singapore.
2. The husband could pursue an application for spousal maintenance in Australia, but not in Singapore.
3. The husband could not pursue his applications for an interim property settlement/litigation funding in Singapore.
4. The expert evidence was that Singaporean courts would be unlikely to consider the husband’s argument that the wife had perpetrated family violence through economic abuse and coercive control.
The courts were equal in their powers in that neither could make orders in rem for property held in the other country, but could make orders in personam. Neither jurisdiction was therefore advantageous in that regard.
The husband was seeking a generalised 40% of the net asset pool, rather than specific assets. It was possible for the Australian court to order a lump sum payment, calculated by reference to the entire property pool (inclusive of the property held in Singapore).
A property adjustment order in Australia compelling the wife to pay the husband a sum of money would be a money judgment capable of registration and enforcement in Singapore.

The Full Court also considered that the primary judge had made a number of factual errors, including:

The wife’s mother had asserted an interest in the Singaporean property;
The legal costs of the parties were approximately equal and around $140,000 to date (when they were, in fact, $382,000 and $350,000);
The parties could litigate on an equal footing. The Full Court noted this was unlikely in circumstances where much of the value Australian property was not readily available to the husband (ie contained in businesses and trusts) and the wife controlled the property in Singapore; and
If the Australian proceedings continued there would likely be a duplication of efforts and costs in Australia and Singapore. The Full Court pointed out that the primary judge had failed to consider the possibility of the Singaporean proceedings being discontinued, particularly in light of the husband’s anti-suit injunction.

In allowing the appeal, the Full Court strongly reinforced the distinction between the “clearly inappropriate forum” and “more appropriate forum” tests, and rejected the primary judge’s finding that the Australian court would be “clearly inappropriate” merely because the court of another jurisdiction was more preferable. With respect to the primary judge’s reasoning, their Honours stated (at [32]):

“The choice of language cannot be easily disregarded as merely semantic. It intimates established legal principles were not correctly applied. Basing the stay decision upon the Singaporean court being the preferable forum because it can “most comprehensively determin[e]” the issues in dispute represents a material error of law because the conclusion deflected attention from the proper question of whether the Australian court was a clearly inappropriate forum”.

Following the appeal being allowed, the parties entered into consent orders to finalise the Australian proceedings. Part of the settlement was that the Singaporean proceedings be discontinued and, therefore, it was unnecessary to consider the husband’s anti-suit injunction.

Conclusion

This is a complex area, and selecting the best jurisdiction for a particular matter requires knowledge of the applicable law in Australia and the relevant legislation, treaties and common law principles which may impact on the choice of jurisdiction. Consulting with a lawyer in the other jurisdiction(s) will almost always be required before a decision is made.

In summary:

Consider enforcement from the outset;
Get early advice as to the parties’ rights in the other jurisdiction(s);
Outcome may be determined by prompt commencement of proceedings;
Forum disputes require strategic analysis;
Try to avoid duplicate proceedings, but it may not be possible.

References

Wolters-Kluwer Australian Family Law & Practice.
“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 (This website was not used in the preparation of this paper).
“Property Settlements Involving International Issues” Seminar Paper, 8 March 2018, John Spender, Kennedy Partners
“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, paralegal at Forte Family Lawyers, for assistance with this paper.

© 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.

Global families – where should the case be heard?