November 27, 2019

Seeking a stay of Australian proceedings due to pending foreign proceedings


By:  Andrew Sauer

Approximately one million Australian citizens reside abroad at any given time.  Many of these Australians form connections with the countries in which they reside which may give rise to what is known as a “forum dispute” in the event of a breakdown in a relationship with a partner.  In simple terms, a forum dispute is where one party seeks that a case be heard in one country, and the other party seeks that the case be heard in another country.

Courts exercising jurisdiction under the Family Law Act 1975 have the power to grant a stay of their own proceedings due to a pending foreign proceeding pursuant to Section 34 of the Family Law Act 1975 and/or the court’s inherent jurisdiction to protect its own processes from being used to bring about an injustice.

The court’s decision whether to grant a stay will be made pursuant to the principle of forum non conveniens, applying the “clearly inappropriate forum” test (see for example the case of Henry v Henry [1996] HCA 51).  For an Australian court to be considered the “clearly inappropriate forum”, the court must find that the continuation of proceedings in that court would be either oppressive (i.e. seriously and unfairly burdensome, prejudicial or damaging) or vexatious (i.e. productive of serious and unjustified trouble and harassment).

The following is a non-exhaustive list of relevant considerations in determining whether Australia is the “clearly inappropriate forum”:

  1. Whether both courts have jurisdiction.
  2. Whether each court will recognise the other’s orders. In this regard, judgments made in specified jurisdictions can be registered and enforced pursuant to the Foreign Judgments Act 1991.  However, the act specifically does not apply to actions “in personam” such as matrimonial causes.  Overseas judgments not covered specifically by legislation are generally recognised and given appropriate weight by the Australian courts, although they are not registrable or enforceable.
  3. Which court can best provide for complete resolution of the matters.
  4. The order in which proceedings were instituted.
  5. The stage which the proceedings have reached.
  6. The costs that have been incurred and will be incurred.
  7. The connection of the parties to the jurisdictions.
  8. Whether the parties are able to participate on an equal footing, having regard to their resources and understanding of language.
  9. The general circumstances of the case.

It is open to the court to split the proceedings, and determine the forum question in relation to financial aspects and parenting aspects of the case separately.

Given timing is a relevant consideration in a forum dispute, any Australian going through separation who has a connection to another country should seek legal advice to determine whether an application should be urgently issued to ensure that their application is first in time.


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