If your client has strong ties to Australia but their former partner has started divorce, property or parenting proceedings in another country, two questions arise quickly: which court will decide the dispute, and can the overseas proceedings be challenged?

The short answer

Sometimes, yes. Where substantially the same dispute is on foot in Australia and overseas, the Federal Circuit and Family Court of Australia may grant an anti-suit injunction restraining a party from continuing the foreign proceedings. It will generally do so only if Australia is not a clearly inappropriate forum and the foreign proceedings are vexatious or oppressive  or interfere with the Australian proceedings. Filing first is relevant, but not decisive. The court looks at the dispute as a whole and at each party’s connections with each country.

When will an Australian court intervene?

An anti-suit injunction is an order directed at a party, not at the foreign court. It restrains that party from starting or continuing legal proceedings in another country. The foreign court is not bound by the order, but a party who breaches it risks being dealt with for contempt in Australia.

In family law, an anti-suit injunction may be sought to restrain overseas divorce, parenting or property proceedings where an Australian court has jurisdiction and is an appropriate forum to determine the dispute. Applications commonly arise where overseas proceedings appear to have been brought for tactical advantage, or to delay, duplicate or undermine proceedings already on foot in Australia.

How do Australian courts decide whether to grant an injunction?

The starting point is whether Australia is an appropriate place for the dispute to be heard. Under the test in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538, applied to family law in Henry v Henry (1996) 185 CLR 571, an Australian court will decline to hear a matter only if it is a “clearly inappropriate forum”: that is, where continuing the Australian proceedings would be oppressive (seriously and unfairly burdensome, prejudicial or damaging) or vexatious (productive of serious and unjustified trouble and harassment).

If Australia is not a clearly inappropriate forum, the court then considers whether the foreign proceedings should be restrained. Following CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345, an injunction may be granted where the foreign proceedings are vexatious or oppressive, or where they interfere with the Australian proceedings. Because the order indirectly affects a foreign court, the power is exercised with caution and with regard to international comity.

In Yeo & Huy (No 2) [2012] FamCA541, which involved proceedings in Australia and China, the Court considered factors relevant to whether an anti-suit injunction should be granted, including:

• whether each court is likely to recognise the other’s orders;
• which court can resolve the whole dispute;
• which proceedings were commenced first, and how far each has progressed;
• the costs already incurred;
• the parties’ connections with each country; and
• the parties’ resources and language abilities, and their capacity to participate on an equal footing.

A common misconception

It is often assumed that whoever files first secures the forum. Filing first does not, of itself, decide where the dispute will be heard.

In Underwood & Underwood (2017) FLC 93-815, the wife filed in the United States first, but the husband obtained an anti-suit injunction in Australia because of the family’s strong connections here. In Cole & Abati [2015] FamCA 185, our firm obtained orders for the wife restraining the husband from continuing proceedings in Indonesia that had been brought to avoid enforcement of an Australian binding financial agreement (a prenuptial agreement).

Timing matters. The longer foreign proceedings run unchallenged, and the more costs are incurred in them, the harder it becomes to argue they should be restrained. Early advice is critical where proceedings have been, or may be, commenced overseas.

How Nicholes Family Lawyers can help

If you are advising a client with Australian connections who is facing, or may face, family law proceedings overseas, our international family law team can help. We welcome referrals from overseas lawyers and other professional advisers.