Here or there? Determining the appropriate forum for your family law dispute

The recent Full Court decision of Obannon and Scarffe [2021] FamCA FC 33 is a useful reminder of the factors to be examined when determining the most appropriate forum to initiate and continue family law proceedings following the breakdown of a relationship or marriage.

The case concerned two sets of proceedings. The wife had initiated Singaporean proceedings with respect to divorce, property, spousal maintenance, parenting and child support, and the husband had also initiated property proceedings in the Family Court of Australia. The parties and their children (as Australian citizens) had relocated to Singapore for the husband's employment in 2014. The parties separated in 2016, with the husband returning to Australia in 2018 and the wife and their children continuing to reside in Singapore.

The Full Court upheld an appeal by the wife from a "wholesale" injunction order made by the trial judge that restrained her from continuing all proceedings issued by the wife in the Family Justice Courts in Singapore. In examining whether or not Australia was a "clearly inappropriate forum" (being the relevant legal test), the Full Court restated the non-exhaustive factors derived from Lord Goth in Spiliada (and as approved in Voth and Henry):

"a) Factors of convenience and expense, such as the location of witnesses;

b) Whether, having regard to their resources and understanding of language, the parties are able to participate in the respective proceedings on an equal footing;

c) The connection of the parties and their marriage with each of the potential jurisdictions and the issues on which relief may depend in those jurisdictions;

d) Whether the other potential forum will recognise Australian orders and vice-versa and the ease of enforcement in each country;

e) Which forum may provide more effectively for a complete resolution of the matters involved in the parties’ controversy;

f) The order in which each of the proceedings were instituted, the stage which they have reached and the costs incurred in each jurisdiction;

g) The governing law of the dispute;

h) The place of residence of the parties;

i) The availability of an alternative forum; and

j) Any legitimate juridical advantage to litigating in either jurisdiction."

In this particular case, the trial judge ignored or overlooked the fact that the parties had resolved that the Singaporean proceedings would continue with respect to divorce, spousal maintenance, parenting issues and child support and the question was whether the continuation of property proceedings in Australia would be oppressive. Instead, the trial judge sought to directly compare the family law procedures of Australia and Singapore in reaching a determination as to which forum was more appropriate for the proceedings to continue.

The Full Court found that the trial judge placed undue weight on which forum could more comprehensively deal with all of the issues in dispute, as opposed to identifying the juridical advantage to the parties in each jurisdiction. The Full Court further stated that "[i]t is clear from the authorities that the test of whether the same controversy is before each Court is not one that requires complete satisfaction that every aspect of the litigation is identical."

The trial judge's orders were set aside and the case was remitted for hearing. This case provides a detailed examination of authorities in forum disputes and the types of issues that practitioners should consider when advising on the jurisdiction in which a client should issue proceedings.

Lander & Rogers' family lawyers have extensive experience advising individuals on cross-jurisdictional family law and property matters. Please contact a member of our Family & Relationship Law team for more information on the topics raised in this article.