Carrick

[2013] FamCA 1118

FAMILY COURT OF AUSTRALIA

CARRICK [2013] FamCA 1118

FAMILY LAW – JURISDICTION – Child protection convention – Request of French Court to assume jurisdiction for child habitually resident in Australia in relation to a deceased estate – Request granted.

APPLICANT: Ms Carrick

FILE NUMBER: MLC 10710 of 2013

DATE DELIVERED: 19 December 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 19 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Smith

SOLICITOR FOR THE APPLICANT: Michael Bula Solicitors

Orders

AND UPON THE COURT BEING SATISFIED
That the child D is habitually resident in Australia.
That the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect Parental Responsibility and Measures for the Protection of Children (“the Child Protection Convention”) is in force between Australia and the Republic of France.
That the Republic of France is a State in which property of the child is located and a State with which the child has a substantial connection within the meaning of Article 8(2) of the Child Protection Convention.
That the Tribunal de Grande Instance de Paris is better placed than this court and any other court of competent jurisdiction in Australia, to assess the child’s best interests in relation to the child’s interest in the estate of her late father and to take measures appointing, or deciding the powers of, a guardian of the child’s property.

IT IS ORDERED THAT

1.I accept the request by the Guardianship Judge of Family Matters dated 16 October 2013 for the Tribunal de Grande Instance de Paris to assume jurisdiction to take measures as it considers necessary for the protection of the property of the child D born … 2005 in the estate of her father Mr J including a measure appointing, or deciding the powers of, a guardian of the child’s property.

2.The Australian Central Authority communicate the outcome of this proceeding to the competent authority in the Republic of France in such way as the Australian Central Authority considers appropriate.

3.The applicant serve a sealed copy of this Order on:-

a)      Judge Tania Jewczuc, the Guardianship and Family Affairs Judge in the Tribunal de Grande Instance de Paris, in Paris, France;

b)     The Australian Central Authority; and

c)      Any other person or entity that she considers appropriate –

and such service may be effected by electronic means.

1. Otherwise, the application be and is hereby dismissed.

2. My reasons for decision be transcribed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Carrick has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10710  of 2013

Ms Carrick

Applicant

REASONS FOR JUDGMENT

(ex tempore)

1. By application filed 6 December 2013 Ms Carrick seeks orders pursuant to s 111CO of the Family Law Act 1975 (“the Act”) for transfer of jurisdiction from this court to Tribunal de Grande Instance de Paris to enable the Guardianship and Family Affairs Judge of that court in France to make orders for the distribution of the estate of Mr J to his only child, D born in 2005.

2. Division 4 of the Part XIIIAA of the Act (International Protection of Children) implements Australia’s obligations pursuant to Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect Parental Responsibility and Measures for the Protection of Children (“the 1996 Child Protection Convention”).

3. The purpose of the 1996 Child Protection Convention is to improve the protection of children in international situations and to facilitate cooperation between the administrative and judicial bodies to achieve this purpose. Essentially, the 1996 Child Protection Convention accords pre-eminent  jurisdiction to the contracting state in which the child is habitually resident to take measures about the child and the property of the child.  In the language of the Convention, administrative and judicial bodies are collectively referred to as authorities and measures include orders made by a court.  A Commonwealth property protection measure is defined so as to include an order made under the Act for appointing, or deciding the powers of, a guardian of the child’s property (s111CA).

4. The applicant relies on the evidence set out in her affidavit sworn 3 December 2013 and the affidavits of  her lawyer Michael Bula sworn 1 November 2013 and 10 December 2013.

5. The applicant is an Australian citizen. Her former partner, Mr J was a French citizen. They did not marry but the applicant’s evidence is that they were in a committed relationship from 2003 spending time together in each country. They did not cohabit. 

6. D, (“the child”) was born in 2005 and, thereafter, spent time with her parents in France. Her father travelled to Australia to spend time with the mother and the child. The applicant’s evidence is that the child’s father intended to move to Australia to reside permanently once he had retired and become eligible for his pension.  The child’s father died, in France, in July 2010. He was intestate. By operation of French law, the child inherits her father’s estate. A description of the estate appears at paragraph 27 of the applicant’s affidavit and includes monies in French bank accounts, payment under a life assurance contract and real estate at Property A in Paris. The net value of the estate is calculated at Euros €142,489.57.

7. On 16 October 2013 Tanya Jewczuk, the Guradianship Judge of Family Matters, of the Tribunal de Grande Instance de Paris determined that the French courts are best placed to take necessary protective measures concerning the child and invited the applicant “to make application before the competent Australian authorities to lodge an application to authorise the Guardianship Judge of the Superior Court of Paris to exercise jurisdiction to take all measures to protect the assets of the minor child [D] forming part of the estate of [Mr J], and in particular the acceptance of the estate and where applicable the sale of assets of the estate.”

8. I accept the applicant’s evidence.

9. The 1996 Child Protection Convention entered into force between Australia and France on 1 February 2011. Both countries are contracting states within the meaning of the Convention.

10. Article 9 of the Child Protection Convention provides that, if the authorities in the contracting state in which the child is not habitually resident (ie. France) consider that they are better placed in that particular case to assess the child’s best interests, they may invite a party to introduce a request before the authorities of the contracting state in which the child is habitually resident (ie. Australia) that they be authorised to exercise jurisdiction to take measures of protection (make orders) as they consider are necessary. That is what has occurred in this case.

11. Relevantly, article 8(2) of the Convention provides, inter alia, that the contracting states to which a request to assume authority may be addressed or be made are the state of which the child is a national, the state in which property of the child is located and a state with which the child has a substantial connection.

12. Section 111CO(4) of the Act provides this court may accept or reject a request made under Article 9 from a contracting state.

13. Our legislation and the Regulations which implement the Convention for Australia require that I  be satisfied of various jurisdictional facts before I am able to transfer jurisdiction to the court in France. I am so satisfied. In particular, on the evidence, I am satisifed that:-

    a)the child D is habitually resident in Australia;

    b)this court has jurisdiction to make a Commonwealth property protection measure (order) as sought by the applicant (S 111CK(1)(a));

    c)the Convention is in force between Australia and the Republic of France.

    d)the Republic of France is a State in which property of the child is located and a State with which the child has a substantial connection within the meaning of Article 8(2) of the 1996 Child Protection Convention.

14. In all of the circumstances, I am satisfied that the Tribunal de Grande Instance de Paris is better placed than this court and any other court of competent jurisdiction in Australia, to assess the child’s best interests in relation to her interest in the estate of her late father and to take measures appointing, or deciding the powers of, a guardian of her property.

15. I will make the orders sought.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 19 December 2013.

Associate: 

Date: