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International Family Law

The leading authority on international family law

10 OCT 2012

Australia - Jurisdiction of the Family Court to hear proceedings relating to children where a party lives overseas

Sally Nicholes

In order to issue proceedings in the Family Court of Australia, an Applicant must satisfy the jurisdictional requirements of s 39 of the Family Law Act 1975 (‘Family Law Act'). Section 39 states that, in order to issue proceedings in the Family Court, either party of a marriage must be:

a)       An Australian citizen;

b)       Ordinarily resident in Australia; or

c)       Present in Australia on the date on which the Application is filed.

In relation to parenting proceedings in the Family Court of Australia, it is generally the case that the best interests of the children are paramount consideration of the Court in relation to making any Order. In the case of ZP v PS (1994) HCA 29, the High Court determined that Common Law doctrine of forum non conveniens has no application to disputes concerning the custody of a child on the basis that Part VII of the Family Law Act conferred a welfare jurisdiction on the Family Court which meant that the best interests of the child must be the first and paramount consideration in any judicial determination of parenting matters.

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