Meroline
[2012] FamCA 306
•23 April 2012
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
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.
That the Commonwealth Central Authority have liberty to apply on short notice.
That all applications are otherwise dismissed.
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
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.
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.
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.
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.
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 appointed to protect the interests of L and E as they were minors.
Because L and E are Australian citizens, the Australian courts have jurisdiction in relation to the distribution of the estate. It is impractical for this Court to undertake that task or for any Australian court to do so. The mother desires to give jurisdiction to the French court to administer the estate but in turn, that court required an authority of an Australian court to do so.
By affidavit filed 16 April 2012, Mr B who is a translator and lawyer said that the relevant documents, when translated, concerned the applicant’s evidence.
The applicant therefore seeks that a request be made by the Commonwealth Central Authority to the relevant jurisdictional counterpart in France to enable the administration of the estate and to give effect to that, the order is necessary to protect the interests of L and E.
The delegate of the Attorney-General confirmed receipt of the application on 3 April 2012 and said that the Authority would proceed with the application once there was an order or invitation of the Family Court of Australia. Unfortunately, because the application was incorrectly drawn, the delegate’s letter refers to s 111CH. That relates to the protection of children not property.
There was some discussion about whether or not the Commonwealth Central Authority needed to be advised of a further hearing but having regard to the nature of the application, that seems unnecessary but as a matter of precaution, as I have said, I have given liberty to apply.
This is a case where it is appropriate to make the order for the protection of the property of the children and so that the relevant French authority can make the necessary distribution of the estate according to law.
I certify that the preceding Eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 23 April 2012.
Associate:
Date: 27 April 2012
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