New Zealand Found by Australian Family Court to be “Appropriate Forum” to Determine Trans-Tasman Family Law Property Dispute

In the recent decision of the Full Court of the Family Court in Nevill [2016] FamCAFC 41 (17 March 2016) May, Ryan & Murphy JJ upheld an order made by Kent J staying the wife’s property proceedings, initially brought in the Federal Circuit Court in Australia. Kent J imposed the stay due to holding, on the facts, that the High Court of New Zealand was “the more appropriate court” for the purposes of s 19 of the Trans-Tasman Proceedings Act 2010 (Cth) (“the TTP Act”).

Section 17 of the TTP Act relevantly provides that:  “(1) A defendant in a civil proceeding in an Australian court may apply to the court for an order staying the proceeding on the grounds that a New Zealand court is the more appropriate court to determine the matters in issue”. Section 19(1) provides: “on application under section 17, the Australian court may, by order, stay the proceeding if it is satisfied that a New Zealand court:

(a) has jurisdiction to determine the matters in issue between the parties to the proceeding; and

(b) is the more appropriate court to determine those matters.”

Section 19(2) provides n determining whether a New Zealand court is the more appropriate court to determine those matters, the Australian court must take into account matters, including:

(c) the place where the subject matter of the proceeding is situated;

(e) the law that it would be most appropriate to apply in the proceeding;

(f) whether a related or similar proceeding has been commenced against the defendant or another person in a court in New Zealand;

(g) the financial circumstances of the parties, so far as the Australian court is aware of them;

(i) any other matter that the Australian court considers relevant;
and must not take into account the fact that the proceeding was commenced in Australia.

In considering the relevant provisions of the TTP Act and the facts, the Full Court commented that: “We are unable to see any uncertainty, ambiguity or difficulty in the text of the TTP Act. It sits within a broader context of seeking to streamline and simplify the law and processes applicable to disputes with a trans-Tasman element … The TTP Act seeks to harmonise the test for establishing whether a court in New Zealand or Australia should be the forum for determining civil proceedings as defined. The means by which the TTP Act does so is equally unremarkable; it accords to the Australian court a broad discretion exercised within, but not confined to, mandatory considerations.”

Further, the Full Court said:

“Stripped to its bare essentials, the submission made before his Honour, mirrored in the assertion of error before us, is that there was a juridical disadvantage for the wife in proceeding in New Zealand which his Honour did not take into account in considering s 19(2)(e) of the TPP Act … That juridical advantage is said to derive from the different system in New Zealand by which settlements of property consequent upon breakdown of marriage are decided, which, in turn, the wife contends might result in her receiving less by way of settlement of property than what she might receive from an Australian court.

His Honour determined that the requisite question should be answered not by reference to juridical advantage … but to the connecting factors with the law of New Zealand as compared to the law of Australia.
[40] Legitimate juridical advantage, gained absent statutory provision by filing regularly in the forum, is specifically excluded by s 19(2) of the TTP Act. Neither s 19(2)(e), nor s 19(2) more broadly, make mention of ‘juridical advantage’ (or, indeed, ‘juridical disadvantage’) as a factor which must be considered in the exercise of discretion. What s 19(2)(e) requires is an assessment of the ‘law that it would be most appropriate to apply’ – a concept plainly consistent with the overall test of the most appropriate forum.

His Honour determined that question by reference to what might conveniently be called ‘connecting factors’ with the law of each forum. We consider his Honour was entirely correct in doing so.”

Accordingly, the wife’s appeal was dismissed with costs.

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