It is not unusual to have parents residing in different jurisdictions following their separation. However, when there is a dispute as to which jurisdiction and with which parent the child should live with, it raises two very important questions for the Court to consider:
- Firstly, which country is the appropriate forum to commence Court proceedings in, i.e. Australia or the other country; and
- Secondly, should the Court give more weight to the clearly inappropriate forum test (whether it is clearly inappropriate for the proceedings to be issued in Australia) or to the best interests principles set out in the Family Law Act 1975?
In the matter of Pascarl and Oxley (2013) the Full Court of the Family Court of Australia dealt with exactly these questions. The matter concerned a child who was removed from Greece by the mother who relocated to Australia. The father resided in Greece. The mother later commenced Court proceedings in Australia where she asked the Court to grant an Order for the child to live with her.
There are a number of elements the Court takes into consideration in parenting matters when determining whether Australia is a clearly inappropriate forum:
- Whether there is evidence of the parent and child living in Australia or the other country;
- Whether there are ongoing proceedings in the other country;
- Whether the Australian courts can enforce any Orders made by them;
- Whether Orders can be made in the other country.
The Court made the following comment when determining the matter “..when a child is within the jurisdiction of the Family Court (being Australia), the doctrine of forum non conveniens (the clearly inappropriate forum test) has no application to the dispute concerning the custody of the child.
The Court found that the best interest principles are paramount in determining whether the child should continue to reside in Australia, rather than in Greece and did not apply the clearly inappropriate forum test.