Australian Jurisdictional Disputes–A Low Comity approach

Since 1990 Australia has broken away from the mainstream common law approach in jurisdictional disputes (forum conveniens) and set a high bar for declining jurisdiction and the release of disputes to other sovereign jurisdictions. Australian Courts will retain jurisdiction unless it is clearly an inappropriate forum (adopting a forum inconveniens test). Mere inconvenience is inadequate – it must be oppressively so often with an element of abuse of process.

This low comity approach has been in place for over 35 years and Australian Courts show no sign of any walking back2 from this high bar. On the contrary, recent decisions have reinforced the requirement for the Australian Court to be clearly inappropriate and there is a converted push (in NSW at least) to promote Australia as the jurisdiction for disputes in APAC (see Australian Expansionism below).

AUSTRALIA AND THE COMMON LAW - SPILIADA

Australia is a common law jurisdiction with roots in the law of England and Wales as a former British colony. Australia has an ambivalent relationship with its colonial past and has, in the body of case law, departed from English jurisprudence notably in the area of challenges to its jurisdiction.

Australia is a federation of States and Territories and family law is governed by federal legislation (with some devolution in Western Australia) contained in the Family Law Act 1975 with later amendments.

The common law approach to jurisdictional challenges is contained in the Spiliada3 decision handed down in 1987 by the House of Lords, England and Wales. Spiliada holds that in the event of a conflict of sovereign jurisdictions, the forum non conveniens should decline jurisdiction. Broadly, the test is – does the case have more natural connections to another competent jurisdiction where substantial justice can be achieved? If so, proceedings are stayed in favour of the more convenient or more appropriate foreign jurisdiction.

Spiliada is aligned with the concept of comity of nations which is respect for and deference to other sovereign nations’ jurisdiction. It promotes a sustainable reciprocity between nations in private international law. The concept emerged in Continental Europe in the 17th century and has been widely adopted in Europe and in the USA (although recent State acts cast doubt on the prominence of comity in international matters).

Comity is not a binding legal obligation. Instead, it is a practice of discretionary deference and courtesy. Courts voluntarily recognise the executive, legislative, or judicial acts of another nation out of mutual respect and convenience. Comity underpins the Spiliada decision.

For some years after Voth in 1990, it was thought that the inappropriate forum test would be reduced in its scope but subsequent decisions have largely confirmed the test and cases where jurisdiction have been declined have often been cases where the Australian Court had no connection to the case – implying forum shopping was behind the motive for bringing Australian proceedings. This is consistent with some kind of abuse of process element being the rationale for declining jurisdiction – and not a relative inconvenience argument.

CSR and cigna insurance australia

In CSR Ltd and Cigna Insurance Australia Ltd5 the Court held that where the dominant purpose of the Australian proceedings was to frustrate access to relief that was only available abroad, jurisdiction would be declined and the proceedings stayed.

Issacman and King

More recently in 2025, in Isaacman and King6 the doctrine was upheld in the NSW Supreme Court. This case was granted a stay as there was “no connection whatsoever between the parties, the cause of action and NSW”. NSW was a clearly inappropriate forum and the Applicant was forum shopping.

Other relevant considerations

a. The onus lies on the defendant who seeks a stay of the proceedings to show that Australia is an inappropriate forum.

b. The need for the Australian Court to apply and determine foreign law is not conclusive for a finding of inappropriate forum but is a significant factor.

c. If the Australian proceedings were filed first or second is a relevant consideration but not of itself determinative. One could expect reasonable prospects attaching to a secondary filing in Australia provided there is some connection to the jurisdiction. Due to the high number of international families with an economic touchpoint in Australia, the Courts are not at all phased by assets located in multiple foreign jurisdictions.

d. Anti-suit injunctions can be applied for by a litigant wishing to secure the Australian jurisdiction and are often granted. These injunctions aim to restrain a party from pursuing a parallel cause of action in a foreign proceeding if Australia is retaining jurisdiction. The injunction is on the party (in personam) not the proceedings per se in a foreign Court. This distinction however still offends the jurisprudence of EU member states as it assumes extra-territorial reach and disregard for sustainable application of comity.

e. When it comes to nuptial agreements, it is hard to see how a cause of action involving a Binding Financial Agreement pursuant to the Family Law Act 1975 which designates Australia as the governing law, would be stayed in favour of a foreign jurisdiction determining the matter. This would be the case even with assets in multiple overseas jurisdictions which is a common scenario in HNW family law cases. Similarly, a BFA clause requiring the parties to refer a dispute under the BFA to mediation or arbitration, would have a high chance of being enforced in Australia.

f. Parenting matters are quite different given the central relevance of the child’s residency. Where the children are not resident in Australia, the case would usually be heard in the jurisdiction of their residence. If there were both parenting and financial proceedings commenced, the Australian Court would likely retain the financial matter and stay the parenting proceedings.

AUSTRALIAN EXPANSIONISM

The current President of the Law Society of New South Wales, Ronan MacSweeney (a dual qualified lawyer Ireland/NSW), has announced as a priority that in 2026 he is promoting NSW as the legal jurisdiction of choice for Asia Pacific. He has highlighted the strong rule of law and stable geopolitical environment as well as rapid Court processes and a concentration of elite legal practitioners in Sydney as factors that support attracting and retaining more cases in the jurisdiction.

The Chief Justice of New South Wales, the Honourable Dr Andrew Bell AC, is a private international law scholar and former practitioner. He is the Patron of the Australasian Association of Private International Law and author of Forum Shopping and Venue in Transnational Litigation7 . He is also in favour of promoting NSW as the legal jurisdiction of choice for Asia Pacific.

Authored by Susannah Quinn, Special Council at Mills Oakley

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Susannah is a dual-qualified family lawyer, first qualifying as a barrister in England and later as a solicitor in Australia, where she now advises international clients. She is a key member of Mills Oakley’s International Family Law team in Sydney and has played a leading role in expanding the team’s profile and growth in recent years.

She has a busy practice advising on bilateral Australia–England marital agreements (Pre Nups) and a strong understanding of the Anglo-Australian corridor, including the tax and investment drivers behind intergenerational capital transfers from the UK to Australia.

She regularly attends international meetings of leading family lawyers and remains closely informed about developments in the field. She has presented at major events, including the Australian Association of Private International Law in 2025 and the invitation-only International HNW Roundtable held in Singapore in May 2026.

She is regularly in the UK and advises European clients on Australian family law matters with international implications.

In addition to her technical family law expertise, Susannah is trained as a mediator and uses proactive dispute resolution skills to help multi-location families and Family Offices develop tailored solutions to financial governance and modern parenting challenges.