International Family Law Lawyers
Jurisdiction of the Family Court of Australia
The Family Court of Australia has jurisdiction over all marriage-related cases in all States and Territories of Australia, except Western Australia which has its own Family Court. The Family Court's jurisdiction covers Applications for Divorce, Property Settlement, Maintenance, Child Support, Parenting and Residence/ Living Arrangements with respect to children. As long as there is some real connection to Australia, the Family Court will usually exercise its jurisdiction if called upon to do so.
International Property Settlement Jurisdiction
The Family Court of Australia has the power to make decisions about any property that is owned by the parties to the marriage (or de facto relationship), including any property held outside of Australia. The Family Law Act provides that parties may commence court proceedings for property settlement in the relevant Australian Family Law Court if either party to the marriage is, at the time of institution of proceedings:
1. An Australian citizen; or
2. Ordinarily resident in Australia; or
3. Present in Australia at the relevant date
Once jurisdiction is established by virtue of the above, the next question to be determined is whether the Australian Court should exercise jurisdiction. A court may decline to exercise jurisdiction in circumstances where an Australian Family Law Court is clearly an inappropriate forum for the subject matter of the proceedings. For example, if both parties are living outside Australia in Ireland and the only property of the parties consists of real estate in Ireland, it is likely that an Australian Court would decline to exercise jurisdiction as the Irish Court would clearly be the most appropriate Court to deal with the matter.
It is possible to apply for a Divorce in Australia, even if you and/or your spouse are not currently living in Australia.
You can apply for a divorce in Australia if either you or your spouse:
- regard Australia as your home and intend to live in Australia indefinitely, or
- are an Australian citizen by birth, descent or by grant of Australian citizenship, or
- ordinarily live in Australia and have done so for 12 months immediately before filing for divorce
Please go to our Divorce section of this Website for further information as to the requirements for a Divorce in Australia.
In the event of child abduction, you should obtain immediate specialist legal advice. Usually, a family lawyer would file an application in the Family Court seeking the return of the child. The Court has wide powers to locate and return the child. If a child has been taken and his/her whereabouts are unknown, the Court has the power to order individuals and government departments to search their records and give the Court any details that they have as to the location of the child.
If you believe a child is under threat of being illegally taken out of Australia, take immediate action. Once a child is out of the Australian jurisdiction, they become subject to the laws of other countries or subject to international conventions. It depends on the country to which the child is taken as to whether the Hague Convention on International Child Abduction applies. In certain circumstances, urgent injunctions to restrain departure from Airports and other departure points may be obtained from the Family Court. Also, be aware that the Family Court has an after-hours emergency phone service, which can be used in the event that you become aware of an imminent illegal departure and an Injunction needs to be obtained prior to the Family Court re-opening on the next business day.
Hague Convention Countries
These are countries that have agreed to be bound by a convention dealing with international child abduction. The main aim of the Hague Convention is to facilitate the prompt return of children wrongly removed to another convention country. Australia is a convention country but not all countries are. If a child is taken from Australia to another convention country there are procedures in place between Governments under the Hague Convention whereby the child may be returned to Australia.
Auditore Pty Ltd trading as Melbourne Family Lawyers have been dealing with International Family Law cases since 1985. Melbourne Family Lawyers regularly act for Overseas Clients seeking Legal Advice and Court Representation in International Family Law Cases. Also, the Firm's Director, Silvio Auditore, has represented the Australian Government in International Child Abduction cases under the Hague Convention.
International Relocation and Freedom of Movement
Adults generally have the right to freedom of movement and can choose to live in whichever country they choose, subject to visa and immigration requirements. When parents separate and go their separate ways, it will be a problem if a parent wishes to take a child with him or her to another country without the formal consent of the other parent. Even taking a child out of Australia temporarily for a holiday will be a problem if the other parent does not consent. The Family Law Act makes it illegal for a parent to take a child outside Australia without a court order or the formal consent of the other parent. If there is a dispute between parents about international travel and/or international relocation, it will need to be determined by the Family Court of Australia. These court cases can be very complex and emotionally charged, and it is important to have the best legal representation to maximise your chances of success.
The basic principles to be applied by a Judge in deciding child relocation cases are:
- The Court must always focus on what is in the best interests of the child as the paramount consideration;
- The best interests of the child are to be assessed whilst taking into account the legitimate interests of both of the parents;
- If a parent seeks to change arrangements affecting where the child lives or time spent with a parent, that parent must demonstrate that the proposed new arrangement is in the best interests of the child.
Melbourne Family Lawyers have successfully represented clients in the Family Court of Australia at Melbourne in cases involving overseas relocation to/from countries including the United States of America, United Kingdom, Ireland, Germany, Switzerland, Hong Kong, Canada, Denmark, France, India, Japan and New Zealand.
One of our Senior Consultant Lawyers, Alison Loach, continues to hold a New Zealand Lawyer Practising Certificate which enables her to advise with respect to New Zealand Family Law, and also witness and certify New Zealand legal documentation including Relationship Property Agreements.
If you need the best available expert legal advice in relation to International Family Law, call Melbourne Family Lawyers on +613 9670 9677 or contact us by email.
Melbourne Family Lawyers since 1985.
For more information on Childrens Matters please go to our Articles & Cases section