In Australian family law, jurisdictional issues often arise in parenting matters involving overseas jurisdictions. These cases raise questions about which court is the appropriate forum for hearing the dispute. Such cases are often extremely complex and hinge on variety of factors, including the location of the parents, the child's habitual residence, and the child's best interests.
Further, the Hague Convention on the Civil Aspects of International Child Abduction, which Australia is a signatory to, often plays a key role in determining some jurisdictional issues, specifically regarding child abduction cases.
Below is an example of one of the recent cases relating to a jurisdictional dispute in a parenting matter.
Background
In this case the wife and husband were married in late 2012 in Country J. They separated in August 2020. At the time of the proceedings, the wife was 45 years old and living in Australia with the parties' child, X, and her two daughters from a previous relationship. The husband was 37 years old and a professional sportsman living in Country J.
The Proceedings
In June 2021, the wife filed an application for financial orders in the Federal Circuit Court of Australia. In August 2021, the parties reached an agreement on interim orders, including the payment of spousal maintenance and child support. However, the husband later filed a petition for divorce in the Family Court in H City, Country J, and sought additional orders seeking permanent custody of X and restraints against the wife.
The Hearing
The wife applied to the Federal Circuit Court for an injunction preventing the husband from continuing with the proceedings in Country J. The husband argued that the Family Court in H City had jurisdiction to make orders relating to X's custody and that the wife's application was an abuse of process.
The central issue in the matter was to determine whether an Australian court or a foreign court was the most appropriate forum in relation to the custody dispute between the parties.
The decision of the High Court of Australia in Voth & Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538 provides that anyone who initiates proceedings in Australia has a prima facie right to have them determined by an Australian court, unless Australia is the clearly inappropriate jurisdiction.
However, in the case of parenting matters, the High Court in ZP v PS [1994] HCA 29; (1994) 181 CLR 639 established a different rule. It concluded that the principle established in Voth applies to all matrimonial proceedings except parenting matters. In cases concerning the custody of a child, the Family Court should best promote and protect the best interests of the child. Issues such as injustice to one of the parties, expense, inconvenience and legitimate advantage, are not relevant issues in a parent matter.
Thus, the doctrine of forum non conveniens (“clearly inappropriate forum”) is not applicable to a custody case where the child is within the jurisdiction. Instead, the Family Court must determine what is in the best interests of the child.
However, Justice Carter noted that it was unclear if the wife’s order seeking for husband to immediately withdraw and/or discontinue all proceedings issued by him could be considered a parenting order, which would require considering the best interests of the child. It was unclear if this order would be made pursuant to section 114 or section 68B of the Family Law Act and neither counsel provided arguments about the legal basis for the injunction.
Justice Carter then noted that the Full Court in the EJK case found that a stay of proceedings, which is effectively what was being sought in this case, was within the inherent power of the court and did not fall into the category of a parenting order.
Therefore, the principle of the child's best interests was not the primary concern in such cases, though it might still be highly relevant or be given significant weight in some scenarios, particularly when deciding whether the court is clearly an inappropriate venue for the case.
Thus, in the present case, the Court considered a variety of factors, including the following:
1. Convenience and expense: The wife, child, and potential witnesses were all residing in Australia, making it a convenient and cost-effective forum for most parties involved, except the husband who lived overseas.
2. Ability to participate: Both parties spoke English fluently and could participate equally in the proceedings. The court also used Microsoft Teams to facilitate remote participation.
3. Connection to jurisdictions: Both parties were born in Country J, but the wife has lived in Australia throughout the marriage, and the child was born and has predominantly lived in Australia. Given the child's strong connection to Australia, it appeared likely that Australia would not be an inappropriate forum to decide the parenting dispute.
4. Progress and costs: The wife initiated proceedings in Australia in 2021. At the time of the hearing both parties had already incurred significant legal costs in Australia.
5. Other considerations: The husband had already consented to the Australian court deciding financial matters, making it more practical to also decide on parenting matters in the same forum.
6. Best interests: The child was born in Australia, was an Australian citizen, and has lived there for most of his life. His primary carer, his mother, also lived in Australia. Most witnesses related to the child's life were in Australia, which made it easier for the court to be informed about the child's situation.
Based on the above, Justice Carter concluded that the Australian court was not an inappropriate forum for these proceedings. If the child's best interests are considered paramount, a stay of proceedings in Australia would also not be appropriate.
Outcome
The Court ultimately held that the overseas Court in H City did not have jurisdiction to make orders relating to X's custody and granted the wife's application for an injunction and ordered the husband to discontinue the proceedings in Country J and to refrain from making any further applications in any other jurisdiction relating to X's custody.
Takeaway
It should be noted that the time of this blog post this decision has not been appealed. Nevertheless, the above ruling is a good example of how the Court is likely to determine a jurisdictional dispute of this nature. Our experienced family lawyers at Surge Legal are well-equipped to deal with complex family law disputes relating to child custody and division of matrimonial property and we encourage you to contact us for a free initial consultation if you have any questions.
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