Cross-border and International Family Law : Koffels Solicitors and Barristers

Separation, property, and parenting matters that cross jurisdictions

Australia is one of the most internationally connected countries in the world. A significant proportion of the population was born overseas, maintains family and financial ties abroad, or has lived and worked in multiple countries. When relationships involving those connections break down, the legal complexity multiplies.

International family law is not simply Australian family law with an overseas element. It involves questions of jurisdiction, the recognition of foreign orders, the enforcement of Australian orders abroad, and, in some cases, the concurrent operation of legal systems with very different approaches to property, parenting, and the rights of separated parties. These are not questions that every family law practice is equipped to handle.

Koffels has acted in family law matters spanning the United States, Latin America, Europe, the Middle East, and Asia. We have working relationships with legal practitioners in key jurisdictions and can coordinate advice across borders when a matter requires it.

Part of the Koffels complex family law guide. For general property settlement, see property settlement and business interests.

Jurisdiction: Which country’s courts apply

The first question in any international family law matter is which court has jurisdiction to hear it. The answer is not always straightforward, and in some cases, more than one jurisdiction will have a legitimate claim to hear the proceedings.

Property matters

Australian courts have jurisdiction to make property orders where the parties are ordinarily resident in Australia, or where the marriage or de facto relationship has a sufficient connection to Australia. That jurisdiction extends to making orders in relation to overseas property, though, as discussed below, whether those orders can be enforced in the relevant foreign jurisdiction is a separate question.

Where proceedings are commenced in more than one jurisdiction simultaneously, forum disputes can arise. Courts have the power to stay proceedings where another jurisdiction is more appropriate, and the risk of inconsistent orders in different countries is real in complex international matters. Early advice on where to commence proceedings and the strategic implications of that choice can be among the most important decisions in the matter.

Parenting matters

For parenting matters, jurisdiction is primarily determined by where the children are habitually resident. A child who has been living in Australia for a sustained period will generally be subject to the jurisdiction of Australian courts regardless of the nationality of the parents or where the marriage took place. Where a child has recently moved between countries, or where the habitual residence is genuinely ambiguous, jurisdiction can itself be contested.

Overseas property in Australian family law proceedings

Overseas property is not excluded from an Australian property settlement. The Family Law Act 1975 (Cth) treats all property owned by either party, wherever situated, as potentially available for division. This includes real property held abroad, overseas bank accounts and investments, foreign company interests, and assets held through overseas trust or corporate structures.

Disclosure obligations

The duty of full and frank financial disclosure in Australian family law proceedings extends expressly to overseas assets. A party that omits foreign property from their financial disclosure is in breach of that obligation, and courts have broad powers to respond to non-disclosure, including drawing adverse inferences and setting aside settlements reached on incomplete information.

Identifying overseas assets that a party is reluctant to disclose can require engagement with foreign property registries, overseas banking records, and, in some cases, formal legal process in the relevant jurisdiction. Koffels has the overseas connections to assist with that process.

Valuation

Overseas property must be valued as part of the asset pool. For real property, this typically requires engagement of a valuer in the relevant jurisdiction. For overseas business interests or investments, the valuation methodology may be governed by the laws or accounting standards of the relevant country. Currency fluctuation between the valuation date and the settlement date is also a practical consideration in matters involving significant overseas holdings.

Enforcement

Australian courts can make orders in relation to overseas property, but those orders do not automatically have legal effect in foreign jurisdictions. Whether an Australian order can be enforced abroad depends on the law of the relevant country, whether that country has a reciprocal enforcement arrangement with Australia, and, in some cases, whether the overseas court is prepared to recognise and give effect to the Australian order.

In practice, parties will often agree to deal with overseas property as part of a negotiated settlement, with one party taking the overseas assets and the other receiving a corresponding adjustment in Australian assets. Where that is not possible, coordinated legal proceedings in both jurisdictions may be required.

Further reading: Overseas property in a separation: what you need to know →

The Hague Convention on International Child Abduction

The Hague Convention on the Civil Aspects of International Child Abduction is one of the most important international instruments in family law. Australia is a signatory, as are most major Western countries and a significant number of others.

The Convention operates on a single principle: a child who has been wrongfully removed from their country of habitual residence, or wrongfully retained in another country, should be returned promptly. The Convention does not determine which parent should have the child’s primary care. It determines where that question should be decided, and the answer is almost always the country from which the child was taken.

What constitutes wrongful removal or retention

Removal or retention is wrongful under the Convention where it breaches the custody rights of a person, institution, or other body under the law of the country in which the child was habitually resident immediately before the removal or retention, and those rights were being exercised at the time of removal or would have been exercised but for the removal.

In practical terms, this means that a parent who takes a child overseas without the other parent’s consent, or who refuses to return a child to Australia after an agreed overseas trip, may be in breach of the Convention regardless of their reasons.

The return mechanism

Applications under the Hague Convention in Australia are made to the Federal Circuit and Family Court of Australia through the Australian Central Authority, which is administered by the Attorney-General’s Department. The proceedings are treated as urgent and are heard on an expedited basis.

The court’s role in Convention proceedings is narrow: to determine whether there has been a wrongful removal or retention, and if so, to order the child’s return. The court does not conduct a full inquiry into the child’s best interests in the same way as ordinary parenting proceedings. The Convention operates on the assumption that the best interests of children are served by returning them to their country of habitual residence, where the substantive parenting dispute can be properly resolved.

Defences to return

The Convention provides a limited number of defences to an order for return. The most significant are that there is a grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation, that the child objects to being returned and has reached an age and maturity where their views should be taken into account, and that the applicant was not actually exercising custody rights at the time of removal.

The grave risk defence is the most commonly raised and the most carefully scrutinised. Courts apply it narrowly, consistent with the Convention’s underlying policy of return. Allegations of family violence can engage the defence, but the threshold is high, and the evidence required to satisfy it is substantial.

Where the destination country is not a signatory

The Convention only operates between signatory countries. Where a child has been taken to a non-signatory country or brought to Australia from one, the Convention mechanism is unavailable. Recovery in those circumstances requires direct engagement with the relevant country’s legal system, which may or may not offer effective remedies. This is one of the most difficult situations in international family law and requires immediate advice.

Enforcing overseas parenting orders in Australia

Where a parenting order has been made by a court in another country and a party seeks to have it recognised and enforced in Australia, the mechanism depends on whether the order was made in a “prescribed overseas jurisdiction” under the Family Law Regulations 1984.

Schedule 1A of the Regulations lists the countries whose orders are capable of registration in the Federal Circuit and Family Court of Australia. The list includes most US states and a number of other countries with which Australia has reciprocal arrangements. Where the order was made in a prescribed jurisdiction, the process involves applying to register the order with the International Family Law Section of the FCFCOA, with supporting documentation including a certified copy of the order and, where required, a translation.

Once registered, the overseas order has the same effect as an Australian parenting order and can be enforced through the same mechanisms, including contravention proceedings where a party fails to comply.

Where the order was made in a jurisdiction not listed in Schedule 1A, registration is not available. In those circumstances, the Australian court may be asked to make its own parenting orders, taking the overseas order into account as a relevant factor, but is not bound by it.

Further reading: Enforcing overseas parenting orders in Australia →

International relocation applications

Where one parent wishes to relocate internationally with a child following separation, and the other parent does not consent, a relocation application must be made to the court. These are among the most contested and emotionally charged proceedings in family law, and the outcomes are genuinely uncertain.

The court must determine which parenting arrangements are in the child’s best interests. In a relocation context, that requires balancing the potential benefits of relocation for the child and the relocating parent against the impact on the child’s relationship with the other parent and on that parent’s ability to maintain a meaningful role in the child’s life.

The factors that courts weigh in relocation applications include the reasons for the proposed relocation, the genuineness of those reasons, the proposed arrangements for maintaining the child’s relationship with the non-relocating parent including the frequency and nature of contact, the financial feasibility of those arrangements, the child’s connections to Australia including school, extended family, and friendships, and the child’s own views where they are old enough to express them meaningfully.

There is no presumption for or against relocation in Australian family law. Each case is assessed on its specific facts. Cases where the proposed relocation involves a genuine opportunity, such as a career move or return to a support network, and where realistic arrangements for maintaining contact have been carefully planned, have a different profile from cases where the relocation appears motivated by a desire to limit the other parent’s involvement.

Preventing relocation

Where a parent is concerned that the other parent may relocate with a child without consent, there are steps that can be taken to prevent this. Watch lists can be placed with the Australian Border Force to prevent a child from being removed from Australia. Injunctions preventing removal can be sought from the court on an urgent basis. And passport applications for children can be opposed, requiring the consent of both parents before a passport is issued or renewed.

Where there is a genuine and immediate risk of a child being removed from Australia, urgent legal advice should be sought without delay.

Expatriates and internationally mobile executives

For executives and professionals who have lived and worked across multiple countries, the question of which jurisdiction governs their family law matters can be genuinely complex. The law of the country in which a couple was married, the country in which they most recently lived, the country in which their assets are held, and the country in which they now reside may all be different, and each may have a legitimate claim to apply.

This complexity creates both risk and, in some circumstances, opportunity. The choice of where to commence proceedings can have a material effect on the outcome, since different jurisdictions approach property division, maintenance, and parenting very differently. The concept of forum shopping, while viewed with suspicion by courts, is a genuine consideration in international matters and one that requires careful, early advice.

For expatriates returning to Australia following a period of overseas employment, questions also arise about the treatment of overseas pension entitlements, equity compensation earned during overseas postings, and property acquired in foreign jurisdictions during the relationship. Each of these requires analysis that combines Australian family law with an understanding of the relevant overseas legal and tax environment.

Foreign matrimonial property regimes

Many countries operate matrimonial property regimes that differ fundamentally from the Australian approach. In community property jurisdictions, assets acquired during a marriage are automatically jointly owned, regardless of whose name they are held in. In separate property regimes, each spouse retains ownership of assets in their name, with a different mechanism for division on divorce. In some civil-law countries, the applicable regime is determined by the parties’ domicile at the time of marriage and may be altered by agreement.

Where a party holds property in a jurisdiction with a matrimonial property regime, the rights that arise under that regime may interact with, and in some cases conflict with, the treatment of that property in Australian proceedings. Understanding how those two systems interact and ensuring that any settlement does not inadvertently create inconsistencies between jurisdictions requires coordinated advice.

Speak with us in confidence

If you are dealing with a family law matter that crosses international borders, we invite you to contact us for a confidential discussion. Every international matter is different and the earlier you obtain advice, the more options are available to you.

This page is intended as a general reference only and does not constitute legal advice. International family law outcomes are highly fact-specific and jurisdiction-dependent. You should seek advice from a qualified family law solicitor in relation to your particular circumstances. Koffels Solicitors and Barristers, Level 23 Angel Place, 123 Pitt Street, Sydney NSW 2000.