Meroline

[2012] FamCA 306

FAMILY COURT OF AUSTRALIA

MEROLINE [2012] FamCA 306

FAMILY LAW – PRACTICE AND PROCEDURE - Private international law - order to Commonwealth Central Authority to enable overseas court to administer entitlements of Australian children to their French relative’s estate

Family Law Act 1975 (Cth)

APPLICANT: Ms L Meroline

FILE NUMBER: MLC 2575 of 2012

DATE DELIVERED: 23 April 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 23 April 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Costello

SOLICITOR FOR THE APPLICANT: Holding Redlich Lawyers

Orders

1. That pursuant to s 111CO(4) of the Family Law Act 1975 (Cth), the Commonwealth Central Authority shall request the Tribunal de Grande Instance de Tours, France to assume jurisdiction in relation to the distribution of the estate of Ms E Meroline to her grandchildren: L, born … December 1996 and E born … November 2000.

2. That the Commonwealth Central Authority have liberty to apply on short notice.

3. That all applications are otherwise dismissed.

4. That reasons be given in due course.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Meroline 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 2575  of 2012

Ms L Meroline

Applicant

And

Respondent

REASONS FOR JUDGMENT

1. By application filed 23 March 2012, Ms L Meroline (“the applicant”) sought orders under s 111CH of the Family Law Act 1975 (Cth) (“the Act”). That provision empowers the Court to order or invite the Commonwealth Central Authority to request its counterpart in an overseas jurisdiction adhering to the relevant international conventions relating to the protection of children to take action. It became apparent that the application should have been made under s 111CO of the Act which concerns orders relating to a guardian of the property of children. I permitted the amendment to the application despite the relevant officer of the Attorney-General’s Department not being put on notice because it was clear that there is limited prejudice to the Commonwealth Central Authority. In addition, I have given leave for orders to be set aside if such prejudice exists.

2. Section 111CJ of the Act provides jurisdiction for the Court to appoint or determine the powers of a guardian of a child’s property in some limited circumstances.

3. Relevantly, s 111CK provides that the Court has jurisdiction to make a Commonwealth property protection measure if the child is habitually resident in Australia.  That applies here. 

4. A Commonwealth property protection measure is defined in s 111CA as meaning a measure under the Act for appointing, or deciding the powers of, a guardian of a child’s property.

5. The evidence of the applicant is that she is the mother of two children L aged 15 and E aged 11.  Their father died in 2004.  The paternal grandmother of the children died in 2010 in France and her estate was left (inter alia) to L and E.  In France, a guardianship judge was…