Flemming - [2012] FamCA 985

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Flemming

Details

AGLC: FLEMMING [2012] FamCA 985
Case: [2012] FamCA 985
Decision Date: 28 November 2012

CaseChat Overview and Summary

In a proceeding before Benjamin J of the Family Court of Australia, Ms Flemming sought orders appointing her as legal guardian for three children, B, G, and H, in relation to specific sums of money held for each child by C Insurance Company. The dispute concerned the appropriate mechanism for protecting these funds for the benefit of the children.

The primary legal issue before the court was whether to grant Ms Flemming's application for appointment as legal guardian under section 111CK of the *Family Law Act 1975* (Cth) and to define the powers and responsibilities of such a guardianship in relation to the funds. The court was required to determine the terms of the guardianship, including how the funds should be held, managed, and ultimately distributed to the children.

Benjamin J reasoned that appointing Ms Flemming as legal guardian was an appropriate property protection measure under section 111CK of the *Family Law Act 1975* (Cth). The court ordered that Ms Flemming be appointed as the legal guardian for each child in respect of the approximately $43,798.44 held for each. The court further detailed the guardian's powers, including holding the sums in trust for each child, paying the capital and accumulated interest upon each child attaining the age of eighteen years, and administering the trusts in accordance with the *Trustees Act 1962* (WA), subject to the court's further orders. The guardian was also permitted to apply for further orders and was directed to file an affidavit detailing payments made to each child after they reached eighteen.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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