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Does "Location Location Location" apply to Family Law?
28 April 2015
As we have in these articles observed often before, it is a small world and getting smaller. More and more cases involve people from, or going to, countries other than Australia but involving the courts in Australia.
In a recent case issues arose that demonstrated the intersection between family law and migration law. There is a kind of visa, known as a 457 visa, that entitles an overseas national to work in Australia and that person's spouse and children can receive visas that depend on the 457 visa. If the 457 visa holder's employment ends, then there is an obligation to inform the Departments, and the 457 visa is cancelled. In that event, the visa holder and the spouse and children lose their right to remain in Australia unless they can find some other basis to remain.
That is what happened to this particular family where the husband, the recipient of a 457 visa, resigned, the parties separated, and he went to the United States to take up new employment.
The wife went to court to ask for orders in relation to parenting, and finance. The husband said that the case should not be heard in Australia. He was in America, and it was inevitable that the wife and children would have to go there too. Their property also was in the USA.
Courts have established rules to decide the question of which country should hear a case and Australia's position is that in financial cases, the case will stay here unless the other party wanting it to be shifted can show that Australia is a clearly inappropriate place to run the case. In parenting cases, it involves the best interests of the children. Here we had both.
The trial judge decided to split the case and hear the parenting matter. She decided that it was in the best interests of the children that the case be heard in Australia.
There was an appeal: was the judge right, and entitled to, split the case in this way? Did she use an incorrect principle? In the result, the appeal was successful on a different basis, because the judge reached conclusions that the wife and children could stay in Australia when there was no appropriate evidence that they could. The migration law position was uncertain that the wife and children could even stay in Australia. However, the appeal court did say that it was not inappropriate for the judge to split the hearing in this way.
In our view that is a very difficult outcome for parties because it means that they can be involved in litigation in two separate countries, on different issues, involving the same family and the same limited pool of resources. There is always the risk, as well, that outcomes might be inconsistent.
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