Insights and Inspiration
When Interests Collide
06 December 2016
The Department of Foreign Affairs and Trade tells us that at any one time there are about one million Australians living and working overseas. In 2014/15 overseas students, and business visa entrants to Australia, totalled just under 400,000. Where there are people, there is conflict. Where there is conflict, there is litigation. Family law is no exception.
Families may have ties to their country of birth even though they are living in a different country. That can sometimes create complex problems if the family breaks up and the courts in two countries might become involved. Who decides, and how, which country will hear the case? For Australia, the short answer is that if you want the court in another country to hear your case you have to show that Australia is a clearly inappropriate place to run the case. The legal principle behind this is that it would be unfair, or burdensome to continue the case in Australia. However, in cases concerning children, this does not apply and instead the test is the best interests of the children: even here, in deciding which court should hear the case if more than one could, is where do the best interests of the children require the case should be decided.
Of course, cases do not come in separate bundles usually. A case concerning children is often also a case about finances. What happens when these two considerations collide?
One such case, reported under the pseudonym of Edwin v Edwin, came before the courts very recently. Mr & Mrs Edwin had two children. They married in 2005. Mrs Edwin was born in India and her parents lived there. Mr Edwin had Indian parents. In March 2013 Mrs Edwin travelled with the older child to India to prepare for the birth of the younger child and Mr Edwin stayed in Australia. Neither she, nor the children, had returned.
Mr & Mrs Edwin had bought a house in Australia and all of their property was here. However, in June 2015 Mrs Edwin obtained orders from a court in India, giving her "permanent custody" of the two children in the husband's absence. She then applied to the Family Court in Australia for property settlement. Mr Edwin opposed that application but also applied for an order from the Australian court that he could spend time with the children in India, and also be in contact with them by Skype or Facetime.
As the property in question was in Australia, there was no doubt that Australia could and should hear that part of the case but what about the children? They weren't in Australia. There were no arrangements between Australia and India that would make any Australian order worthwhile getting nor would it be of any assistance to the father.
What the judge found was that despite the fact that Australia could hear the parenting case, it should not because the welfare of the children meant that there would be no evidence about how they felt about their father, no psychologist's report, no evidence available about what might be the effect on the younger child, whom the father had never met, of the father's introduction into that child's life. I should note that the father had travelled to India to try to see the children but was unsuccessful.
In any real sense, this is an unfair outcome for the father. The mother started this case in Australia to obtain a property settlement. She previously got parenting orders in India. They don't have a lot of money. The court's decision means that the husband has to fight the financial proceedings in Australia and, if he wants any time at all with his children, he has to go to India to run that case. If that isn't burdensome, or unfair, I don't know what is. Yet because our society, through the Family Law Act, places such a high premium on the welfare of the children when it comes to parenting cases, and that consideration also governs where a decision should be made about their future, the law seems to be looking in two directions at once.
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