AUSTRALIA Law and Practice Contributed by: Paul Doolan, Melinda Winning, Carly Middleton and Jeff Marhinin, Barkus Doolan Winning
Applications in Australia for an Anti-Suit Injunction A litigant may have commenced proceedings in the courts of Australia seeking financial relief. Their spouse, whether of a marriage or a de facto relationship, may have commenced pro - ceedings in a foreign jurisdiction. In addition to potentially seeking a stay in the courts of the foreign jurisdiction of those other proceedings, a litigant in Australia can make an application to the Australian court seeking the grant of an anti- suit injunction against the other party personally, seeking to restrain them from taking any step in the foreign proceedings other than an order dismissing those proceedings or adjourning them pending the completion of the Australian proceedings. Although the making of an order for an anti-suit injunction by the Australian courts is relatively rare (given judicial comity), the principles upon which an Australian court will proceed when determining such an injunctive claim are (in gen - eral terms) the same as those that apply when seeking an order for a stay of Australian pro - ceedings on forum grounds. Connection Between Australian Financial Proceedings and a Foreign Divorce There is no requirement in Australia for proceed - ings for a divorce to be first instituted or a divorce order made to invoke the Australian jurisdiction for property settlement or spousal maintenance relief. Proceedings for financial relief in Australia can (subject to time limitation periods) com - mence even if the divorce order was obtained in a foreign jurisdiction. If, however, financial relief is already granted in that foreign jurisdiction, then questions would arise as to whether the Australian financial pro - ceedings should be permanently stayed, on
by specific legislative provisions between the countries), the Australian family law courts apply the test in financial cases of whether Australia is a clearly inappropriate forum (as distinct from a natural forum test) for the determination of the matter. The applicant seeking the stay bears the onus of making out that ground. Applications for a stay on forum grounds are ordi - narily dealt with on an interlocutory basis. They often require that a single expert be appointed to give evidence to the court about the process and laws of the competing forum or forums. The Aus - tralian court has regard to a series of different factors in reaching a determination of whether Australia is a clearly inappropriate forum. Those matters may include but not be limited to ques - tions such as: • the connection of each party to the proceed - ings with each forum, including matters such as citizenship, domicile, and ordinary resi - dence; • the place of marriage between the parties; • the nature and situs of the property and financial resources of the parties or either of the parties; • the assets that may need to be valued, their situs, and the costs of that process in various jurisdictions; • the order in which proceedings were com - menced in different countries and the stage the proceedings have reached; • when service was effected of those proceed - ings on the other party; • the time and expense of proceedings in each country; and • whether there is any legitimate juridical advantage to either party in either jurisdiction.
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