AUSTRALIA Law and Practice Contributed by: Paul Doolan, Melinda Winning, Carly Middleton and Jeff Marhinin, Barkus Doolan Winning
2. Financial Proceedings 2.1 Choice of Jurisdiction Jurisdictional Grounds to Commence Financial Proceedings
Applications for a Stay of an Australian Divorce Application to Pursue Divorce Proceedings in a Foreign Jurisdiction Circumstances can arise where more than one country has jurisdiction to hear and determine a divorce application. The respondent to an Australian divorce applica - tion may acknowledge that the Australian court has jurisdiction to hear a divorce application but – if they have filed an application for divorce proceedings in a foreign jurisdiction – they can seek a stay of the Australian proceedings, argu - ing that Australia is a clearly inappropriate forum. Leaving aside cases where the competing juris - diction is New Zealand, the Australian courts do not apply a forum test of ascertaining what is the natural forum; rather, the issue is whether Australia is a clearly inappropriate forum to hear and determine the matter. A series of factors are considered, which may include but not be lim - ited to questions such as: • the order in which divorce proceedings were commenced in Australia and overseas; • the date on which service of each of those divorce proceedings was effected; • the date allocated for the hearing of each divorce application; • the connection of the parties to Australia; • the place of marriage; • the effect of a divorce order under foreign law; • whether there are other proceedings on foot in another jurisdiction referable to the mar - riage; • whether there is a legitimate juridical advan - tage to proceeding in a particular country; and • questions of time and cost associated with divorce proceedings.
Financial proceedings (property settlement and/ or spousal maintenance) can be commenced in Australia between the parties to a marriage if, on the date the application instituting the pro - ceedings is filed in a court, either party to the marriage is: • an Australian citizen; • ordinarily resident in Australia; or • present in Australia. As can be seen by the last of these grounds, the jurisdictional base is very broad. Grounds for Jurisdiction for Commencing Financial Proceedings Between De Facto Couples Different and more complex jurisdictional grounds apply for parties to a de facto relation - ship who wish to commence proceedings in Australia. Geographical Connection A court can only make a declaration about the existence of a de facto relationship if it is satis - fied that one or both of the persons referable to the de facto relationship were ordinarily resident in a participating Australian jurisdiction when the application was commenced. Further, the court must be satisfied either that both parties to the de facto relationship were ordinarily resident in Australia during at least a third of the de facto relationship or that the applicant made substan - tial contributions in relation to the de facto rela - tionship of the kind referable to the Australian legislation. An alternative condition for the mak - ing of an order for property settlement or spousal
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