AUSTRALIA Law and Practice Contributed by: Paul Doolan, Melinda Winning, Carly Middleton and Jeff Marhinin, Barkus Doolan Winning
law, limits the ways in which parties can bring an end to their legal rights. A BFA can only be made where the parties have had independent legal advice. An order for finan - cial relief under the Family Law Act, even where made by consent, will only be made by the court where it considers the terms of the order are proper or just and equitable. The intention is to stop parties from being subject to terms of settlement negotiated by a former partner or spouse who is in a stronger bargaining position due to circumstances such as family violence. There may, however, in appropriate cases, be a submission available that a party should not be able to bring a claim for financial relief and that they are estopped from doing so by virtue of the informal agreement made, depending upon the circumstances in which that agreement was made and the reliance upon it by the other party. The commencement of proceedings in Australia under the Family Law Act for orders in relation to a child involve different jurisdictional considera - tions to those that apply to the commencement of financial proceedings. Jurisdictional Requirements to Commence Parenting Proceedings in Australia Proceedings may be instituted under the Family Law Act in Australia in relation to a child only if one or more of the following conditions are met: • a child is present in Australia on the date the application instituting proceeding is filed in a court; 3. Child Law 3.1 Choice of Jurisdiction
• the child is an Australian citizen or is ordinarily resident in Australia on the date the applica - tion commencing the proceedings is filed in a court; • a parent of the child is an Australian citizen, is ordinarily resident in Australia, or is present in Australia on the date the application institut - ing proceedings is filed in a court; • a party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia on the relevant day; or • it would be in accordance with a treaty or arrangement in force between Australia and an overseas jurisdiction, or the common law rules of private international law, for the Australian court to exercise jurisdiction in the proceedings. The bases upon which jurisdiction can be estab - lished in Australia in relation to parenting pro - ceedings are extremely broad. Circumstances can arise, however, where both the courts in Australia and a foreign country each have juris - diction in relation to the parenting relief sought. In those circumstances, an application can be brought seeking a permanent stay of the Aus - tralian parenting proceedings on forum grounds. In determining whether or not to stay the Aus - tralian proceedings, the court is guided not by the “clearly inappropriate” test (ie, that which applies in relation to financial relief), but rather by consideration of what is in the best interests of the child. In the general run of matters, the pres - ence of the child or children in Australia for any reasonable period of time (leaving aside cases where there are Hague Convention Applications on foot) will lead to the determination that is in the best interests of the child that the proceed - ings be determined by the Australian court.
45
CHAMBERS.COM
Powered by FlippingBook