Flemming
[2012] FamCA 985
•28 November 2012
FAMILY COURT OF AUSTRALIA
| FLEMMING | [2012] FamCA 985 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Hague Convention on Jurisdiction, Applicable Law – Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children 1996 (the Child Protection Convention 1996) – The power to make orders to appoint a guardian for property of a child and deciding the powers of such guardian. |
| Family Law Act 1975 (Cth) ss 111CA(1), 111CJ and 111CK Family Law Amendment (Child Protection Convention) Act 2002 (Cth) Explanatory Memorandum Family Law Amendment (Child Protection Convention) Bill 2002 Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children 1996 Vienna Convention on the Law of Treaties 1969 |
| Re the Licensing Ordinance (1968) 13 FLR 143 Meroline [2012] FamCA 306 |
| APPLICANT: | Ms Flemming |
| FILE NUMBER: | CSC | 398 | of | 2012 |
| DATE DELIVERED: | 28 November 2012 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 3 September 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Wilson |
| SOLICITOR FOR THE APPLICANT: | Daniel Towne & Associates |
| COUNSEL FOR THE RESPONDENT: |
| SOLICITOR FOR THE RESPONDENT: |
Orders
By way of property protection measure pursuant to s 111CK of the Family Law Act 1975 (Cth), Ms Flemming (born … 1969) is appointed as the legal guardian (‘the guardian’) for the child B (born … December 1996) in respect of the sum of about $43,798.44 held for the child by C Insurance Company of D Town, E State, Country F.
By way of property protection measure pursuant to s 111CK of the Family Law Act 1975 (Cth), Ms Flemming (born … 1969) is appointed as the legal guardian (‘the guardian’) for the child G (born … September 1998) in respect of the sum of about $43,798.44 held for the child by the C Insurance Company of D Town, E State, Country F.
By way of property protection measure pursuant to s 111CK of the Family Law Act 1975 (Cth), Ms Flemming (born … 1969) is appointed as the legal guardian (‘the guardian’) for the child H (born … December 1999) in respect of the sum of about $43,798.44 held for the child by the C Insurance Company, D Town, E State, Country F.
By way of further property protection measure pursuant to s 111CK of the Family Law Act 1975 (Cth), the powers of the guardian in respect of each of the subject property pools for each child are:-
a. To hold the sum due to each child in trust, with the guardian being trustee and each respective child being the beneficiary
b. To pay each such child the capital and accumulated interest in respect of that trust upon the beneficiary child attaining the age of eighteen years;
c. Subject to these orders, each such trust shall be administered in accordance with the Trustees Act 1962 (WA);
d. The guardian shall be at liberty to apply to this Court for further orders in respect of her powers in regard to one or other of the trusts, such leave to expire six months after each child attains the age of eighteen years.
e. Five months after each child attains the age of eighteen years the guardian shall file in this Court and serve on the subject child an affidavit setting out the details of the payments to such child in accordance with these orders.
IT IS DIRECTED
Four (4) sealed copies of this order be provided as soon as practicable, by ordinary pre-paid post to the mother’s solicitor.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Flemming 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 CAIRNS |
FILE NUMBER: CSC 398 of 2012
| Ms Flemming |
Applicant
REASONS FOR JUDGMENT
INTRODUCTION
By application filed 28 June 2012 and heard 3 September 2012, Ms Flemming (‘the mother’) sought property protection measures pursuant to s 111CK of the Family Law Act 1975 (Cth) (‘the Act’). That particular provision of the Act enables the Family Court, in some circumstances, to appoint a guardian for property of a child and, having done so, to decide the powers of a guardian in respect of that property.
The Family Law Amendment(Child Protection Convention) Act 2002 (Cth) amended the Act, ratifying and putting into Australian domestic law the provisions of the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children 1996 (‘the Child Protection Convention’). The Child Protection Convention established the rules governing conflicts of law in parental responsibility litigation which has an international aspect. It provides for the personal protection of children and for the protection of property of children. It is in this later respect that this application is made.
The order sought is a Commonwealth Property Protection Measure, relating to a child, which in turn is defined under s 111CA of the Act as:-
…a measure, (within the meaning of the Chid Protection Convention) under this Act for appointing, or deciding the powers of, a guardian of the child’s property.
In the context of this provision the term “or” is generally seen as being used as a disjunctive concept.[1] The structure contained within the amending Act and the Child Protection Convention cannot sustain a reading of the ‘or’ as an alternative but as separate. Thus it is not ‘either or’ but rather ‘one and/or’ the other.
[1] Blackburn J in Re the Licensing Ordinance (1968) 13 FLR 143 at 147.
In this case, the application for a property protection measure relates to property in Country F for B aged 15, G aged 14 and H aged 12, who are children of the mother and her late husband.
This property of each of the children is held for each of them by the C Insurance Company, an insurance company Country F. The Country F is a signatory to the convention but it has not entered into force in that State. As such Country F is not a convention country within the definition of the Act.
THE ISSUES
The issues for me to determine are whether this Court has the jurisdiction to make an order under this provision in these circumstances, and, if so, whether this Court should make such an order for the administration, conservation and eventual disposal of the subject property to each of the children.
BACKGOUND AND DISCUSSION
The children’s respective property entitlements were created as a consequence of the operation of a life insurance policy following the death of their father, Mr Flemming. He died in 2010 in Country I. Upon his death, each child became entitled to a sum of $43,798.44 from C Insurance Company.
C Insurance Company is an insurance company which has its operational office in D Town, E State, Country F. The basis upon which C Insurance will provide the monies for the children, prior to their respective eighteenth birthdays, is on receipt of a ‘certified court appointed Guardianship Paper’ bearing a raised or coloured seal. The funds would otherwise be invested by C Insurance with an interest yield of half of one per cent each year. The mother wishes to repatriate those funds to Australia and hold them in an interest bearing account for each of the children. Finally, she wishes to account to each of the children for their funds and accumulated interest upon each child attaining the age of eighteen years.
The mother filed an affidavit in which she provided evidence of the following:-
(a)The birth of each of the children;
(b)That she was the children’s mother;
(c)That the late Mr Flemming is the children’s father.
(d)The death of Mr Flemming occurred in 2010.
(e)Details of the un-administered Will of Mr Flemming.
The mother deposes that the father signed a will in December 1995 (before the birth of any of the children) and that he nominated the mother to be Executrix and Trustee of his Will and left the whole of his estate to her.
The mother has not applied for a grant of Probate of the husband’s estate, presumably as it was not necessary in terms of his assets within the Commonwealth of Australia. In any event, such a grant of Probate would have applied to the property of her late husband but not to the property of the children arising from the C Insurance Company policy. The children’s entitlements arose out of contract, not as a gift or entitlement passing via an estate.
The mother was born in Western Australia and is an Australian citizen. She and the husband were married at the time of the husband’s death. From the mother’s affidavit and annexed documents there is evidence that she lived in Western Australia at the birth of each of the three children, was living in Western Australia at the time of the husband’s death and continues to live in Western Australia. I find that the mother and the children have been and are habitually resident in Australia at all relevant times.
In these proceedings, the mother filed a financial statement showing that she had an income of about $1,270 per week and expenses to the extent of that income. She deposed that she had property to the value of about $1,950,000 and liabilities of about $331,000. The mother has superannuation entitlements of about $5,570.
The mother provided statements and letters from C Insurance which said that the husband’s then employer had contracted insurance with C Insurance which covered the time he was working in Country I. Further the correspondence from C Insurance sets out that each of the children is entitled to the $43,798.44.
By letter of 26 May 2011, C Insurance said it would release the funds to the mother provided she has a court order naming her as a guardian for the children in respect of this property. The letter also said that the mother needed an order naming her as the guardian of the minor’s estate, or other appropriate documents confirming access to the minor’s fund is permitted, and further the type of access that it sought. The letter goes on to say that when the minor’s attain majority (usually 18), he or she should contact them immediately.
It is the mother’s wish that those funds are sent to Australia to be invested by her as trustee for that property on behalf of each of the children.
The mother says, and I accept, that the sums of $43,798.44 are property of the children. Further she claims that the funds should be held by her as guardian for them, pending each child attaining eighteen years. The mother seeks orders that she be appointed a guardian in respect of that money and that her powers as guardian be subject to the administrative requirements of the Trustee Act 1962 (WA). Each of the sums will be held in separate trusts for each of the children and the mother will account to them for the property and accumulated interest as each child attains the age of 18 years.
Counsel for the mother submitted that there would need to be three separate trusts and I concur with that approach.
I raised with counsel for the mother whether there should be two trustees. It was submitted, and I accept, that the amounts involved combined with the mother’s personal assets, that this would impose an unnecessary imposition on the mother, having regard to the particular circumstances of this family. Those circumstances include the relatively modest sums in each trust, the age of each of the children, the mother’s strong financial circumstances, her request that the trust be managed under the Trustee Act 1962 (WA) and her counsel’s submissions that the sums would be retained intact until each child attained the age of eighteen years. I accept any orders should provide a vesting date as each child turns eighteen.
The threshold question is whether I have power to make such an order under s 111 or any other provision.
The Explanatory Memorandum provided with the Family Law (Amendment Child Protection Convention) Bill 2002 says, in relation to the definition of “Commonwealth Property Protection Measure”, the following:-
Commonwealth Property Protection Measure is defined for the purpose of the new sub-divisions C (s111 CJ to s111 CP). Sub-division C implements provisions of the Convention which regulate the grounds of jurisdiction which a Court and other competent authorities may exercise in taking measures for the protection of property of a child (as distinct from issuing protection of a person of a child dealt with under sub-division B. Under the Convention, a measure for protection of a property of a child is limited to a measure taken by a court or competent authority in a Convention country for appointing, or deciding the powers of, a guardian of the child’s property [emphasis added].
Paragraph 67 of the amending Act inserted s111 CK to the Family Law Act. The memorandum observed as follows:-
67.Sub-section 111 CK(1) implements articles 5 to 14 of the Child Protection Convention in relation to the jurisdiction of courts to take a Commonwealth Property Protection Measure for a child. The drafters of this convention included these articles in recognition of the utility of having precise rules concerning having the designation and power of the child’s legal representatives to administer the child’s property located in a foreign state, in particular where it is necessary to carry out the settlement of an estate which passed to a child. The drafters of the Convention did not intend to go beyond the appointment or determination for guardian of a child’s property. Thus, for example, the Convention does not alter traditional private international law rules on the lack of jurisdiction of a court to determine ownership of interest in foreign land or other property.
Australia ratified the Child Protection Convention in enacting the Family Law (Amendment Child Protection Convention) Act 2002.
In keeping with the provisions of the amending Act and the Child Protection Convention, the mother does not seek a determination as to the ownership of the property, it is not an issue. The mother does not seek orders imposing an obligation on C Insurance nor does she seek mirror or similar orders in Country F.
Country F is either or both a ‘negotiating State’ or a ‘contracting State’ under the Child Protection Convention. The Vienna Convention on the Law of Treaties 1969 provides a series of definitions under Article 2 these include:-
1(b) ‘ratification’: … means in each case the international act so named whereby a State establishes on the international plane its consent to be bound by a treaty;
1(e) ‘negotiating State’ … means a State which took part in the drawing up and adoption of the treaty;
1(f) ‘contracting State’ … means the State which has consented to be bound by the Treaty, whether or not the Treaty has entered into force.
Country F was a signatory to the Convention, having signed in 2010. The definitions under s 111CA(1) of the Act include the definition of a convention country as meaning:-
A country, other than Australia, for which the Child Protection Convention has entered into force.
In the case of Country F it is a negotiating State perhaps a contracting state. However, the Convention has not entered into force in Country F as domestic law and as such Country F is not a convention country within the definition under the Act.
Subdivision C of Division 4 of the Act sets out the provisions giving this Court jurisdiction for decisions about a guardian of a child’s property.
Section 111CJ of the Act provides:-
This sub-division applies only if an issue under this Act is whether a court, as opposed to any of the following authorities, has jurisdiction to appoint, or determine, the powers of the guardian of a child’s property:
(a)a central authority or competent authority of a convention country;
(b)a competent authority of a non-convention country.
The Explanatory Memorandum to the Family Law Amendment (Child Protection) Bill 2002 provides:-
Section 111CJ provides in effect that the rules in Subdivision C apply only in the event of a conflict in jurisdiction between a court in Australia and a competent authority in another country. This provision implements the preamble to the Child Protection Convention (which makes it clear that the Convention is directed to the protection of children in international situations) and article 46 of the Convention which provides that a convention county is not obliged to apply the provisions of the Convention to conflicts solely between different systems of law in that country. Thus neither the convention nor Subdivision C applies to conflicts solely between a Commonwealth and a State authority, or conflicts of jurisdiction solely between authorities of different States in Australia.
Section 111CJ of the Act contemplates that this Court can make an order for the protection of property of a child who is habitually resident in Australia notwithstanding that the property is situate in a non convention country, such as the Country F.
I am satisfied that it is possible, in some circumstances, for an Australian court to exercise jurisdiction in non convention countries. A reading of the relevant provisions make it clear that the legislature intended that a property protection order can be made in respect of both property and/or children in a non convention country. As such I have jurisdiction. In any event C Insurance has indicated that it will abide by an order such as the one sought by the mother.
The next step is to consider s111CJ of the Act as to whether this Court, as opposed to a competent authority in Country F, has jurisdiction to appoint or determine a guardian of the children’s property. A ‘Competent Authority of a non-convention country’ in s 111CA(1) of the Act is defined as ‘an entity that has responsibility or authority under the law in force in the [non convention] country to take measures or make decisions about … appointing or deciding the powers of a guardian’.
In Meroline [2012] FamCA 306, Cronin J said that s 111CJ provides jurisdiction for the Court to appoint or determine the powers of a guardian of a child’s property in some limited circumstances. This was in relation to the operation of the Convention between Australia and France, who were at that time, both Convention countries.
Having determined jurisdiction, in this case there is an issue about whether this Court should exercise that jurisdiction in the circumstances that there is no evidence (from either the mother or C Insurance) that a competent authority in Country F seeks to exercise jurisdiction in respect of the property of these children. As such I am satisfied that I should consider exercising jurisdiction.
Section 111CK of the Act provides a structure as to when and how the jurisdiction applies to an Australian court exercising jurisdiction under this provision of the Act.
Section 111CK(1)(a) of the Act provides that a court may exercise jurisdiction for a Commonwealth property protection measure in relation to a child who is habitually resident in Australia. In this case the three subject children are habitually resident in Australia. The wording of this provision makes it clear that the determination whether or not to exercise jurisdiction is discretionary.
Further, this discretionary exercise of the jurisdiction for a child or children who are habitually resident in Australia is limited by s 111CK(4) of the Act which brings into effect the relevant limitations provided in ss 111CL, 111CM and 111CO of the Act.
Section 111CL of the Act does not apply in this case as there is no evidence that any of the children have been wrongfully removed from or retained outside a convention country.
Section 111CM of the Act provides limitations when a corresponding measure has been sought from a competent authority of a convention country (in some circumstances). In this case there are no prior proceedings to which this section applies and as such this provision provides no exclusion to the exercise of the jurisdiction by a Family Court.
Section 111CO of the Act provides a limitation in circumstances where a competent authority of a convention country is asked to assume jurisdiction. In this case the Country F has not been asked to assume jurisdiction, nor could it as it is not a convention country.
In the circumstances of these proceedings, I determine that I ought to exercise jurisdiction under Subdivision C of Division 4 of the Act. The legislation envisages that this Court has discretionary jurisdiction in respect of appointing a guardian in certain cases. It also provides jurisdiction for a court to determine the powers of a guardian of a child’s property. C Insurance is the present holder of the funds for the children and will apparently act on the authority of an order of this Court. There is no issue that the equitable ownership of in the property is that of each of the children.
I have jurisdiction to make orders as sought by the mother and in the factual circumstances in this case I am satisfied that the orders sought are an appropriate exercise of that jurisdiction. I am satisfied that the orders proposed are directed to the protection of the property of each of the children by reasonably appointing a guardian and deciding the powers of that guardian. The moneys will be invested at a better rate of interest for the children, as compared to the present circumstance, and the moneys are not subject to the fluctuations in the foreign currency exchange. As such I will make the orders.
I certify that the preceding forty three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on.
Associate:
Date: 28 November 2012
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