Garrett & Cowell

In the Family Court of Australia, Ms Garrett (the wife) sought property settlement orders pursuant to s 79 of the *Family Law Act 1975*. Mr Cowell (the husband) responded by filing applications seeking the dismissal of the wife's application, arguing that Australia was a clearly inappropriate forum for the determination of the property settlement. The husband bore the onus of establishing this claim.

The court was required to determine whether the Australian court was a clearly inappropriate forum for the wife's property settlement proceedings, considering whether the continuation of these proceedings would be oppressive or vexatious to the husband. This involved weighing various connecting factors, including the parties' nationalities, residency, the location of their property, their respective capacities to litigate in each jurisdiction, and the potential for parallel proceedings. The court also considered the significance of the substantive law applicable in Australia compared to Switzerland and the wife's prima facie right to have her properly invoked jurisdiction exercised.

Justice Moore reasoned that while there were factors favouring Switzerland, such as the parties' current residence and the existence of Swiss court orders concerning children and maintenance, these did not render Australia a clearly inappropriate forum. The court found that the continuation of proceedings in Australia would not be seriously and unfairly burdensome or vexatious to the husband. Key considerations supporting this conclusion included the parties' Australian citizenship, the presence of substantial property in Australia, the wife's prima facie right to have her jurisdiction exercised, the fact that property proceedings had not significantly advanced in either jurisdiction, and the advantage of conducting proceedings in the parties' first language. The risk of parallel proceedings was acknowledged as a serious concern, but not sufficiently compelling to establish that Australia was a clearly inappropriate forum.

The husband's application to dismiss the wife's property settlement application was dismissed.