The court refused an application for divorce because Australia was the inappropriate forum

With roughly one quarter of the Australian resident population being born outside Australia, it is accepted that there's a diversity of individuals and cultures in Australia. With this large migrant population, comes the opportunity of people still having some affiliation with their “home country” and in turn, legal issues outside of Australia.

The issue of litigating in different countries was highlighted in the recent case of Navarro & Jurado (2010), where Federal Magistrate Jarrett refused a husband’s application for divorce because Australia was the inappropriate forum and the wife had already filed for divorce in Costa Rica. The husband appealed this decision and the appeal was dismissed, with costs.

In determining which Court (and country) was the best one for determining the divorce application, the principle to be applied was whether proceedings commenced by the husband in the Australian Court was “a clearly inappropriate forum”.

The Australian Court would be the “inappropriate forum” if it were found that to continue the divorce proceedings in Australia would be “oppressive in the sense of seriously and unfairly burdensome, prejudicial or damaging or vexatious in the sense of productive of serious and unjustified trouble or harassment.”

In making its decision, the Court looked at the following factors:

• whether or not the Court in Australia and the Court in Costa Rica will recognize the other’s orders and decrees,
• whether any orders may want to be enforced in another country and if so how easily that could be done,
• which Court could provide more efficiently for complete resolution of the matters;
• where concurrent proceedings are before the Court, the order where the proceedings were instituted and the point which they have reached and costs which have been incurred;
• the connection of the parties and their marriages with each of the jurisdictions and the relief available in those jurisdictions;
• whether, having regard to the parties resources and their understanding of language, the parties are able to participate in the respective proceedings on an equal footing.

After considering the facts of this case, the Federal Magistrate found, that the Australian Family Court was the inappropriate forum and the husband’s application for divorce was dismissed. The effect was that the Court in Costa Rica (where the wife applied for a divorce) would be the Court that would deal with the divorce proceedings.

For parties who were married outside of Australia and are now living here, or where only one party now lives in Australia, an Australian Court may, in certain circumstances grant a divorce. To apply to an Australian Court for a divorce, at least one party to the marriage must be an Australian citizen and reside in Australia, or one party to the marriage must have been ordinarily resident in Australia for one year immediately preceding the filing of an application for a divorce order. To establish these factors is not always as easy as it appears.

The transient nature of many peoples work, together with modern technology and the accessibility of international travel, do not always make it easy to establish where a party’s “residence” might be.

When parties (especially those from different countries) litigate about matters, the issue of a Court’s jurisdiction (the power of the Court to hear a matter) becomes important as each country invariably has their own remedy and application of the law. It may be more beneficial for a specific party to institute divorce proceedings in one country as opposed to the other because the system on the law which is applied, this might result in a “race” to begin Court proceedings in a certain country.

Parties who have affiliations with countries other than Australia and who want advice on where to begin Court proceedings should contact us to discuss their options and what might best suit their circumstances.