Kyriakous

[2017] FamCA 529

FAMILY COURT OF AUSTRALIA

KYRIAKOUS   [2017] FamCA 529

FAMILY LAW – PRACTICE & PROCEDURE – Where the father died intestate in France – Where the mother seeks orders to accept on behalf of the children all entitlements to their father’s Estate in France – Order sought to transfer inheritance from France to Australia – Whether the Court has jurisdiction to make the orders sought – Application dismissed.

Family Law Act 1975 (Cth)

Re Alex: Hormonal Treatment for Gender Identity Dysphoria (2004) FLC 93-175
SMB and JWB; Secretary, Department of Health and Community Services [sic] (Re Marion)(1992) 175 CLR 218

APPLICANT: Ms Kyriakous

FILE NUMBER: BRC 5247 of 2017

DATE DELIVERED: 14 July 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 14 July 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Comino, Stephen Comino & Arthur Comino Solicitors

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

1. The Initiating Application filed 26 May 2017 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5247 of 2017

Ms Kyriakous

Applicant

EX TEMPRORE

REASONS FOR JUDGMENT

1. By Initiating Application filed 26 May 2017, the Applicant seeks a suite of orders which in summary, amount to declarations that she is “authorised”: 

   a)to accept, on behalf of her children, any entitlement they may have pursuant to the intestacy laws of France to property in France following the death of their father in that country in 2015;  and

   b)to hold and possess such entitlements until the children are legally capable of holding and possessing themselves;  and

   c)to cause such entitlements to be placed into bank accounts in Australia or France and/or to cause funds to be transferred from France to Australia and/or to sell real property and cause the sale proceeds of the same to be remitted to Australia;  and

   d)to hold all such funds in bank accounts in Australia on behalf of the children and to deliver up to them their entitlement within a reasonable time of each of them attaining the age of 18 years.

2. It is asserted on behalf of the Applicant that such orders are necessary to enable the children to receive their entitlement to their late father’s Estate in circumstances where he died intestate. 

3. It is further submitted that, if orders are not made in the terms sought, the children will lose or be deprived of their interests in their late father’s Estate and this is something which is not in their best interests.

4. During the course of discourse with Mr Comino, who appeared on behalf of the Applicant, particular reference was made by him to Annexure “EK7” to the affidavit of the Applicant filed 26 May 2017 and, in particular, to the contents of the last paragraph which appears on page 2 of that Annexure.  I must say that my understanding and appreciation of the contents of the Memorandum of Relevant Facts and Circumstances and Law, which is to be found as Annexure “EK11” to the same affidavit, being a document the contents of which are agreed to and accepted by the notary to whom reference is made in other aspects of the affidavit, was to the effect that the children’s rights as recipients of their late father’s property under French law would not be extinguished but would survive a number of events – including those outlined in that Memorandum.

5. I am not necessarily persuaded, in any event, that a failure to obtain orders in the terms sought in the Initiating Application would extinguish the children’s rights as such.  It seemed to me that what the Applicant is required to do is to satisfy the appropriate Court within the French legal system that she is the person with the right to accept the inheritance in the name of the children. 

6. In any event, even if I am wrong in my assessment of the evidence, a more fundamental issue seems to me to arise in the consideration of this Application: that is, whether there is jurisdiction for this Court to make the orders sought in the Application.

Is there jurisdiction to make the orders sought?

1. It is trite to note that the absence of a contention that a Court lacks jurisdiction (that is, the authority to decide the range of matters that can be litigated before it) removes from the Court the obligation of being satisfied it has the jurisdiction to determine to the application before it. 

2. Here, the Applicant contends that s 67ZC of the Family Law Act 1975 (Cth) provides the Court with the jurisdiction to determine the application for orders relating to the children’s right to claim from the Estate of their deceased father who, as I have said, died intestate in France in 2015.

3. Section 67ZC is within subdivision E (Other orders about children) of Division 7 (Child maintenance orders) of Part VII (Children) of the Act. It is in the following terms:

   Orders Relating to welfare of children

   (1) In addition to the jurisdiction that a court has under this Part in relation to children, the court also has jurisdiction to make orders relating to the welfare of children. 

   Note: Division 4 of Part XIIIAA (International protection of children) may affect the jurisdiction of a court to make an order relating to the welfare of a child.

   (2) In deciding whether to make an order under subsection (1) in relation to a child, the court must regard the best interest of the child as the paramount consideration. 

   Note:Section 60CB to 60CG deal with how a court determines a child’s best interests. 

4. The Explanatory Memorandum which accompanied the provision stated that it “provides the court with jurisdiction relating to the welfare of children in addition to the jurisdiction that the court has under Part VII in relation to children.  This jurisdiction is the parens patriae jurisdiction explained by the High Court in SMB & JWB, Secretary, Department of Health and Community Services re Marion (1992) 175 CLR 218”.

5. I accept that authority[1] has repeatedly outlined that the limits (or scope) of the parens patriae jurisdiction have not and “cannot” be defined. However, as has also often been noted, the jurisdiction conferred by s 67ZC of the Act (and its precursor/s) is “similar to” the parens patriae jurisdiction.

   [1]For example:  re Alex: Hormonal Treatment for Gender Identity Dysphoria (2004) FLC 93-175 at [198].

6. Further, in Marion’s Case, the majority[2] said the following at paragraphs 79, 80 and 81 of the joint Judgment:

   [2]Mason CJ, Dawson, Toohey, Gaudron JJ.

   79. Ultimately, however, any limitation on the jurisdiction of the Family Court conferred, or apparently conferred, by the Family Law Act must be constitutional.  The Act is limited in its operation by reference to the constitutional powers under which it is enacted:  “Marriage” (s 51(xxi));  “Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants” (s 51(xxii)); and, so far as the Northern Territory is concerned, the territories power (s 122).  In the present case the emphasis was naturally on the marriage power and, as well, the territories power. 

   80.In Fountain & Alexander Gibbs CJ said (1982) 150 CLR at p 627:

   The power of the Parliament to make laws with respect to marriage does not extend to laws of the protection or welfare of the children of the marriage except in so far as the occasion for their protection or welfare arises out of, or is sufficiently connected with, the marriage relationship. 

   Clearly, there are limits on the scope of the welfare jurisdiction, as with the custody and maintenance of jurisdictions, though the scope of the jurisdiction will nevertheless be very wide.  So long as an order of the Family Court is constitutional, there can be no limitation on the Court’s powers emanating from the need to preserve the scope of State legislative powers. …

   81.It is clear enough that a question of sterilisation of a child of a marriage arises out of the marriage relationship and that the sterilisation of a child arises from the custody or guardianship of a child. Therefore, jurisdiction to authorise a sterilisation is within the reach of power of the Commonwealth, quite apart from the operation of s 122 of the Constitution.

7. In the present case, it seems to me that the rights with which the Application is dealing do not arise out of, nor are they sufficiently connected with, the marriage relationship.  The relationship which is relevant in the present case is that which exists between the children and their father, a parent who died intestate.  This relationship is unaffected by the marriage relationship which existed between their parents.  The children’s right to inherit does not arise out of the marital relationship between their parents but, rather, out of their biological connection with their deceased father.

8. For those short reasons delivered orally, I am not persuaded that the Court has jurisdiction to make orders in the terms sought by the Applicant in the Initiating Application filed 26 May 2017 and, consequently, I dismiss the Application filed 26 May 2017.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 14 July 2017.

Associate:     

Date:              14 July 2017