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This is an international family law article which discusses a case note on the appropriate forum for International Family Law Proceedings. This article was written by James Tan, Senior Lawyer.

Case Note: Dunstan v Ziegler [2015] FamCA 419

The Family Court of Australia recently delivered a judgment which considered the issue of whether Australia or the Cook Islands is the appropriate forum to continue Family Law Proceedings for a parenting matter.

Brief Summary of Facts

In 2006 the parties commenced their relationship in Cook Islands. Their son was born in the Cook Islands in 2008.

In January 2012, the father started working in Australia on a three weeks on/one week off basis. He became a permanent resident of Australia whilst the mother and child continued to live in the Cook Islands.

In or about July 2014, the parties separated on a final basis, with the father spending substantial and significant time with the child whenever he returned to the Cook Islands.

In or about July 2014, the father’s employment schedule changed, such that he worked three weeks in Australia, and then three weeks in Cook Islands.

In about late September 2014 the child travelled to Australia with his mother.

The initial agreement was for the child to return to the mother’s care in Cook Islands on 2 October 2014.

However, on that day, the father told the mother he intended to retain the child in his care.

In addition, he took steps contrary to the parties’ initial agreement, such as enrolling the child in a local Australian School.

On 10 October 2014, the mother commenced proceedings in the Federal Circuit Court of Australia, seeking interim orders including (without limitation):

a.  the child be returned to the mother’s care; and

b.  the father be restrained from removing or again taking possession of the child.

On 18 November 2014 orders were made by the Federal Circuit Court of Australia that the child be returned to the mother’s care and live with the mother. However, the child would be allowed to travel to Australia and spend time with the father, where it does not interfere with the child’s schooling. Shortly thereafter, the child and mother returned to Cook Islands.

On or about 11 December 2014, the mother commenced parenting proceedings in the High Court of the Cook Islands for parenting matters, upon which Interim orders were made on 20 March 2014.

Following this, the mother commenced an initiating application on 10 October 2014 in the Family Court of Australia for the Australian proceedings to be stayed.

Decision of Justice Hogan of the Family Court of Australia

Justice Hogan of the Family Court of Australia ordered in favour of the mother, and granted a stay of the Australian proceedings.

In coming to her decision, Justice Hogan considered a number of issues, both legal and factual. Some of these considerations included (without limitation)

a.  A discretion to grant a stay of proceedings should be exercised with great care or extreme caution. In this regard, Justice Hogan made the following statement:

“In considering whether the local Court is a clearly inappropriate forum, attention must be directed to the inappropriateness of that Court and not the appropriateness or comparative appropriateness  of the foreign forum…” (emphasis added);

b.  Australian orders cannot be registered in the Cook Islands (and vice versa);

c.  The Family Court of Australia has jurisdiction to make parenting orders in relation to the child, notwithstanding that the child is no longer within the Commonwealth of Australia;

d.  The residency status of the parties;

e.  Which forum can more effectively provide for a complete resolution of the matters in dispute;

f.  The order in which the legal proceedings were instituted; and

g.  The personal circumstances of each party. For example, the mother was self-employed in the Cook Islands and would suffer significant detriment if proceedings were continued in Australia.

 Our Comments

We consider that International Family and Matrimonial Law is complex, and certainly needs to be reviewed on a “case-by-case” basis.

Both legal and factual considerations (within and outside of Australia) are crucial in ensuring proper submissions are made to the Court.