Re Sherburn - [2021] FedCFamC1F 162

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)

Re Sherburn [2021] FedCFamC1F 162

File number(s): BRC 13085 of 2021

Judgment of:

JARRETT J

Date of judgment:

26 October 2021

Catchwords:

FAMILY LAW – CHILD WELFARE – The Family

Law Act 1975 (Cth) and related legislation – 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

Legislation:
Family Law Act 1975 (Cth) ss. 66G, 66J(1), 66J(3), 66J(4), 111CA, 111CK

Trusts Act 1973 (Qld) ss. 60, 61(1), 62(1)

Cases cited:
Field v Moore, Field v Brown (1855) 7 De GM & G 691

In Re Stayte [1997] 1 QdR 99

LK v Director-General, Department of Community Services (2009) 237 CLR 582

Division: Division 1 First Instance

Number of paragraphs:

36

Date of last submission

20 October 2021

Date of hearing:

22 October 2021

Place:

Brisbane

ORDERS

BRC 13085 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

IN THE MATTER OF THE HAGUE CONVENTION OF 19 OCTOBER 1996 ON JURISDICTION, APPLICABLE LAW, RECOGNITION, ENFORCEMENT AND COOPERATION IN RESPECT OF PARENTAL RESPONSIBILITY AND MEASURES FOR THE PROTECTION OF CHILDREN

AND IN THE MATTER OF AN APPLICATION PURSUANT TO S 111CK OF THE
FAMILY LAW ACT 1975 (CTH) BY

MR SHERBURN

First Applicant

MS SHERBURN

Second Applicant

ORDER MADE BY: JARRETT J

DATE OF ORDER: 26 OCTOBER 2021

THE COURT ORDERS THAT:

1.By way of property protection measure pursuant to s 111CK of the Family Law Act 1975 (Cth), Mr Sherburn and Ms Sherburn are appointed as the legal guardians of the property of X born … 2013 in respect of all of her interest in the property located in the French Republic at B Street, C Town;
2.By way of property protection measure pursuant to s 111CK of the Family Law Act 1975 (Cth), Mr Sherburn and Ms Sherburn are appointed as the legal guardians of the property of Y born … 2013 in respect of all of her interest in the property located in the French Republic at B Street, C Town;
3.Pursuant to s 111CK of the Family Law Act 1975 (Cth) and by way of property protection measure, the guardians appointed pursuant to orders 1 and 2 hereof are empowered to sell in the name and on behalf of the children, the undivided rights belonging to each of them in the property located in the French Republic at B Street, C Town;
4.Upon the sale of the children’s interests in the property located in the French Republic at B Street, C Town the guardians shall:
(a)receive and hold the sum due to each child in trust, with the guardians being trustee and each respective child being the beneficiary of that child’s share;
(b)pay to each such child the capital and accumulated interest in respect of…

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 Re Sherburn

Details

AGLC: Re Sherburn [2021] FedCFamC1F 162
Case: [2021] FedCFamC1F 162
Decision Date

CaseChat Overview and Summary

Mr and Ms Sherburn applied for orders to authorise them to sell property in France that is owned by their daughters, X and Y. The court found that the children had been habitually resident in Australia and therefore that Australia had jurisdiction to make the orders sought. The court noted that the applicants, as parents, had the authority to exercise all the duties, powers, responsibilities and authority that, by law, parents have in relation to their children. The court found that it was appropriate to make the orders sought by the applicants. However, the court was concerned about the applicants' proposed use of the proceeds of sale of the property. The court found that the applicants would be holding the proceeds of sale on trust for the children and the Trusts Act 1973 (Qld) would apply. The court concluded that the applicants should not be able to utilise the children's capital to support themselves and made orders that the applicants hold the proceeds of sale on trust for the children. The court also made orders that the applicants could apply to the court to vary the orders in the future.

Orders