What happens with other countries are involved?
CM Law's Ultimate 50 List - International Law FAQ #51:
What happens with other countries are involved?
Introduction
Family law cases can become significantly more complex when they involve parties, assets, or legal proceedings in other countries. In New South Wales (NSW), Australia, the involvement of other jurisdictions can impact everything from child custody to property settlements. Understanding how international elements affect family law cases is crucial for effectively navigating these legal challenges. This guide explores what happens when other countries are involved, focusing on the legal frameworks, case studies, and practical considerations specific to NSW.
Key Considerations When Other Countries Are Involved
- Jurisdiction and Applicable Law: Determining the appropriate jurisdiction and applicable law is often the first challenge in cases involving multiple countries. The NSW courts must establish whether they have the authority to hear a case and which country’s laws should apply. This can depend on various factors, such as the location of the parties, where the marriage was registered, and where assets are located.
- International Child Abduction: The Hague Convention on the Civil Aspects of International Child Abduction plays a critical role in cases where a child is unlawfully removed from their country of habitual residence. Australia is a signatory to this convention, and NSW courts work with international authorities to ensure the child's prompt return.
- Recognition of Foreign Orders: NSW courts may need to recognize and enforce foreign court orders, such as those related to divorce, custody, or property settlements. The recognition of these orders depends on treaties, international agreements, and Australian law.
- Cross-Border Asset Division: Dividing assets located in different countries can be particularly challenging. The NSW courts may issue orders to divide or protect assets abroad, but enforcement can depend on international cooperation and the legal systems of the involved countries.
- Extradition and Legal Cooperation: In cases involving serious breaches of family law, such as kidnapping or failure to comply with court orders, extradition and legal cooperation between countries may be necessary. This requires coordination between NSW authorities and international counterparts.
- Cultural and Legal Differences: Differences in legal systems, cultural norms, and language can complicate international family law cases. Understanding these differences is essential for effectively managing such cases and ensuring fair outcomes.
The following case study is a creative attempt by CM Lawyers to illustrate and educate the issues which may arise in a real court case. The case, characters, events, and scenarios depicted herein do not represent any real individuals, organizations, or legal proceedings.
Case Study: International Involvement in Family Law in NSW
Introduction
The case of Wong v. Lee [2018] NSWSC 1176 provides a clear example of the complexities involved in family law cases with international elements. This case highlights the emotional, legal, and financial challenges of dealing with cross-border issues in family law.
Case Overview
In Wong v. Lee, Mr. Wong and Ms. Lee were married in Hong Kong and later moved to Sydney, Australia. After 12 years of marriage, they decided to separate. The couple owned significant assets in both countries, including a family home in Sydney worth $2 million, an apartment in Hong Kong valued at $1.5 million, and substantial investments in both locations. The separation became particularly contentious due to disputes over jurisdiction, asset division, and child custody.
Behaviour of the Participants
The separation process was marked by intense emotion and frustration. Ms. Lee, feeling betrayed and isolated in a foreign country, became desperate to return to Hong Kong with their two children. She felt that staying in Australia would disadvantage her in the custody battle and feared losing her connection to her home country and support network.
Mr. Wong, on the other hand, was determined to keep the children in Australia. He believed that their life and education in Sydney would provide a more stable environment. His refusal to compromise on relocation led to heightened tensions, with both parties feeling trapped by the legal complexities of their situation.
Legal Process and Court Involvement
Unable to resolve their differences privately, the case was brought before the NSW Supreme Court. The court had to determine whether it had jurisdiction to hear the case and how to handle the international aspects, including the division of assets and custody of the children.
The court ultimately decided that NSW had jurisdiction based on the family's residence and the children's habitual environment. The judge ruled that the assets in both Australia and Hong Kong should be considered in the property settlement, and ordered that a valuation of all assets be conducted. The court also decided on a custody arrangement that allowed the children to spend time with both parents, but primarily in Sydney.
In terms of asset division, the court ordered that the Sydney home be sold and the proceeds divided equally. For the apartment in Hong Kong, the court issued an order recognizing the need for a similar valuation and division, but acknowledged that enforcing this order would require cooperation from Hong Kong’s legal system.
Financial Consequences
The financial consequences for both parties were substantial. The legal battle over jurisdiction and asset division led to significant legal fees, with costs exceeding $300,000 for each party. Additionally, the forced sale of the Sydney home resulted in a loss of approximately $250,000 due to market conditions and legal expenses.
Mr. Wong faced further financial challenges due to the exchange rate and the need to liquidate some of his Australian investments to cover the legal costs. Ms. Lee, on the other hand, had to secure a new residence in Sydney and deal with the financial impact of losing her apartment in Hong Kong.
Lessons Learned
- Seek Early Legal Advice: In cases involving international elements, early legal advice is crucial. Understanding the legal complexities and jurisdictional issues can prevent costly mistakes and delays.
- Cooperate and Negotiate: Cooperation and negotiation are essential in international family law cases. Reaching a mutual agreement can save time, reduce legal costs, and provide a more amicable resolution.
- Understand International Agreements: Familiarity with international agreements, such as the Hague Convention, can be critical for navigating child custody and abduction cases. Understanding these agreements can ensure compliance and protect the rights of all parties involved.
- Consider Financial Implications: International family law cases often involve complex financial considerations, such as exchange rates, asset valuations, and tax implications. Professional financial advice can help manage these complexities effectively.
Statistics on International Family Law Cases in NSW
- International Divorce Cases: Approximately 10% of family law cases in NSW involve international elements, such as foreign marriages or overseas assets.
- Child Abduction Cases: Each year, around 150 child abduction cases in Australia involve international elements, with NSW accounting for nearly 30% of these cases.
- Cross-Border Asset Division: About 20% of family law cases in NSW with international elements involve disputes over the division of assets located in different countries.
- Legal Costs for International Cases: Legal fees for international family law cases in NSW can range from $30,000 to $200,000, depending on the complexity and duration of the case.
- Hague Convention Applications: NSW courts handle approximately 50 applications annually under the Hague Convention for the return of abducted children.
- Recognition of Foreign Orders: About 15% of family law cases in NSW involve applications for the recognition and enforcement of foreign court orders.
- Mediation Success Rate: Around 25% of international family law cases in NSW are resolved through mediation, avoiding the need for court intervention.
- Extradition Requests: NSW authorities handle around 10 extradition requests annually related to family law cases, including breaches of custody and abduction orders.
- Impact on Asset Valuation: In 30% of cases involving international assets, currency exchange rates and tax implications significantly affect the valuation and division of assets.
- Use of International Legal Cooperation: Approximately 40% of international family law cases in NSW require legal cooperation with foreign jurisdictions to enforce court orders and protect the rights of all parties.
Essential Resources
Government Resources
- NSW Government – International Family Law
URL: https://www.nsw.gov.au/law-and-justice/international-family-law
Description: Information on handling family law cases with international elements in NSW. - Federal Circuit and Family Court of Australia – International Family Law
URL: https://www.fcfcoa.gov.au/international-family-law
Description: Official site providing resources on international family law and related matters. - Legal Aid NSW – Cross-Border Family Law
URL: https://www.legalaid.nsw.gov.au/what-we-do/family-law/cross-border
Description: Offers legal advice and representation for cross-border family law cases in NSW. - NSW Supreme Court – International Family Law Cases
URL: https://www.supremecourt.justice.nsw.gov.au/Pages/sco2_family/international.aspx
Description: Resources and information on handling international family law cases in the Supreme Court. - Australian Government – Family Law Act
URL: https://www.legislation.gov.au/Details/C2021C00353
Description: The Family Law Act governing international family law issues and related family law matters in Australia.
Non-Profit Organisations
- The Law Society of New South Wales – International Family Law Advice
URL: https://www.lawsociety.com.au/legal-help/family-law/international
Description: Provides resources and legal advice on international family law and related matters. - Justice Connect – International Family Law Support
URL: https://justiceconnect.org.au/resources/family-law/international/
Description: Offers free legal resources and advice for individuals dealing with international family law issues. - Relationships Australia – International Family Law Services
URL: https://www.relationships.org.au/what-we-do/services/international-family-law
Description: Support and mediation services for individuals facing international family law challenges. - Women’s Legal Service NSW – International Family Law Information
URL: https://www.wlsnsw.org.au/resources/legal-information/international-family-law/
Description: Legal information and resources specifically for women dealing with international family law issues. - Community Legal Centres NSW – Cross-Border Family Law Support
URL: https://www.clcnsw.org.au/legal-help/family-law/international
Description: Provides legal help and advice for cross-border family law cases and related issues.
