Wright
[2021] FamCA 409
•18 June 2021
FAMILY COURT OF AUSTRALIA
Wright [2021] FamCA 409
File number(s): PAC 5842 of 2020 Judgment of: HANNAM J Date of judgment: 18 June 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – 1996 Hague Convention on Jurisdiction – Where father seeks to be appointed legal guardian for children’s property interests located in a non-Convention country – Where father intends to sell subject property and seeks an order that his powers as guardian be to hold each child’s interest in the property in trust and account to them the capital and accumulated interest in respect of those trusts upon them attaining the age of eighteen – Whether the Court has jurisdiction to make orders as sought by way of property protection measure under s 111CK of the Family Law Act 1975 – Consideration of whether children are habitually resident in Australia – Where in the circumstances the Court is satisfied that jurisdiction can be exercised – Orders made as sought. Legislation: Family Law Act 1975 (Cth) ss 111CA(1), 111CJ 111CK Cases cited: Bunyon v Lewis (No.3) [2013] FamCA 888
Duckworth & Jamison (2014) Fam LR 471
Flemming [2012] FamCA 985
LK v D.G. Department of Community Services (2009) 232 CLR 582
Secretary, Department of Family and Community Services & Padwa (2016) FLC 93-701
State Central Authority & Spring-Ernest (No.2) [2013] FamCA 906
Sun & Long [2019] FamCA 3
Number of paragraphs: 48 Date of last submission: 14 December 2020 Date of hearing: 14 December 2020 Place: Parramatta Solicitor for the Applicant: Hills Family Law Centre ORDERS
PAC 5842 of 2020 BETWEEN: MR WRIGHT
Applicant
ORDER MADE BY:
HANNAM J
DATE OF ORDER:
18 JUNE 2021
THE COURT ORDERS THAT:
1.By way of property protection measure pursuant to s 111CK of the Family Law Act 1975 (Cth), Mr Wright born … 1975 is appointed as the legal guardian (“the guardian”) for the child X born … 2008, in respect of property located in Country B and more particularly described as C Street, in D City, Country B.
2.By way of property protection measure pursuant to s 111CK of the Family Law Act 1975 (Cth), Mr Wright born … 1975 is appointed as the legal guardian (“the guardian”) for the child Y born … 2009, in respect of property located in Country B and more particularly described as C Street, in D City, Country B.
3.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 interest of 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 trust shall be administered in accordance with the Trustee Act 1925 (NSW);
(d)The guardian shall be at liberty to apply to this Court for further orders in respect of his 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.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wright has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
INTRODUCTION
The applicant (“the father”) seeks an order that he be appointed legal guardian for his two children aged 13 and 11 (“the children”) in respect of property interests in an overseas country (“the overseas country”) of which the children, the father, and the children’s mother who is now deceased (“the mother”) are citizens.
The property interests are in the former family home situated in the overseas country (“the property”) which passed to the children and the father in equal thirds upon the mother’s death.
The father who has now moved to Australia with the children wishes to sell the property and intends to hold each child’s interest in trust and pay the capital and accumulated interest to each child upon the relevant child turning the age of 18.
The father is unable to deal with the children’s rights without obtaining the approval of this Court and then making an application to the relevant authority in the overseas country.
As the overseas country is a non-Convention country[1] the father seeks to invoke the jurisdiction of this Court to make orders pursuant to Part XIIIAA Division 4 of the Family Law Act 1975 (Cth) (“the Act”). Provisions under that Division relate to the international protection of children, including property protection measures.
[1] As described by Bennett J in State Central Authority & Spring-Ernest (No.2) [2013] FamCA 906 at [44]-[47]: … A non-Convention country is a country for whom the 1996 Convention (the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children signed at the Hague on 19 October 1996) has not entered into force with Australia.
The question for me to determine is whether the Court has jurisdiction to make orders under s 111CK of the Act appointing the father as guardian for the children and determining his powers in that regard. The determination of the question of jurisdiction also involves considering whether the children are habitually resident in Australia.
BACKGROUND
The father (who is now 46) and the mother who is now deceased were both born in the overseas country. The children were also born in the overseas country in 2008 and 2009 respectively.
Little detail is given about the father’s relationship with the mother although it appears at some stage of their relationship they lived together in the property situated in the overseas country. The property is referred to by the father in his affidavit as the former “matrimonial home”, though he further deposes that it was solely owned by the mother.
In June 2016 the mother died intestate and in accordance with the intestacy laws of the overseas country, the property passed to the father and the children in three equal shares.
Following the mother’s death, the father and the children continued to live in the property and sometime after, the father re-partnered.
In September 2017, the father, his partner and the children immigrated to Australia. Shortly after their arrival, the children were enrolled at a local primary school which they continue to attend.
In 2018 the father and his partner were married. The father deposes that there is an “ante nuptial agreement” between he and his partner that operates to protect his interests in the property.
Since about mid-2018 the property has been leased and the rental income received has been used to meet the maintenance and monthly running costs.
In late 2019 the father, his partner and the children were granted permanent residency in Australia under the employer nomination Scheme. Their Visas are valid until November 2025. The father remains employed on a full-time basis in a managerial position in the retail industry and he further deposes that the family are intending to make an application for Australian citizenship.
The father’s application
In early 2020 the father initiated the process to sell the property situated in the overseas country as he deposes that the rental income received from it is neither consistent nor sufficient to meet its outgoings. He further deposes that it had been his intention at the time to use the net proceeds of sale to purchase real estate in Australia for the family to live in.
It appears that in around April 2020 the father entered into a contract for sale for the property. The sale was not completed as the father received legal advice to the effect that under the law of the overseas country he was unable to deal with the children’s interests in the property without first obtaining the approval of both the court in which the children are domiciled, and the High Court of the overseas country.
In correspondence between the father and his lawyer in the overseas country annexed to the father’s affidavit, the lawyer advises:
…the court of the area in which the property is situated will not entertain such an application for leave to sell or mortgage property owned by a minor unless and until the court of the area in which the minor is domiciled has granted the requisite authority. In this instance it will have to be the court and upper guardian of all minors in Sydney, Australia.
The father then obtained legal advice in Australia including that the Australian Central Authority (“the ACA”) is the agency responsible for international affairs under the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children signed at the Hague on 19 October 1996 (“the 1996 Convention”) and that the relevant court is the Family Court of Australia.
The father’s lawyer wrote to the ACA on his behalf and in September 2020 the ACA provided written advice that the Authority did not wish to be heard on the father’s application.
In November 2020 the father commenced these proceedings seeking in summary the following orders:
·That by way of property protection measure, pursuant to s 111CK of the Act, he be appointed as the legal guardian for the children in respect of their property interests in the property located in the overseas country;
·That by way of further property protection measure his powers as guardian in respect of each of the subject property pools for each child are determined to be:
(a)To hold the interest of each child in trust;
(b)To pay each child the capital and accumulated interest in respect of those trusts upon the beneficiary children attaining the age of 18.
·That in the alternative, he be appointed as legal guardian for the children in respect of their property interests and his powers determined as same pursuant to s 67ZC of the Act.
As there is no respondent in the proceedings, the father sought that his application be determined in Chambers on written submissions.
On 14 December 2020 written submissions made on the father’s behalf in support of his application were filed, and on that date judgment was reserved.
On 31 May 2021 the father through his solicitors sought to adduce further evidence by way of affidavit. At the time, the father was advised that if such evidence were to be considered by the Court, he must first formally apply to have the proceedings reopened.
Although no such application to re-open was filed, I treat the father’s request contained in his correspondence to the Court as an application that the contents of that letter form part of the evidence in this application. I note that no issue of procedural fairness arises in the circumstances of this case, given there is no respondent in the proceedings. Accordingly, in addition to his trial affidavit filed 14 December 2020, the father’s supplementary affidavit dated 28 May 2020 is read for the purposes of this Judgment.
THE LAW AND DISCUSSION
Jurisdiction
The father contends that the Family Court of Australia has jurisdiction to make the proposed orders pursuant to ss 111CK, 111CD or 67ZC of the Act.
There is no dispute that the overseas country is a non-Convention country.
In written submissions made on his behalf, the father clarifies that he does not seek a determination as to the ownership of the children’s property, but rather that the Court “contemplate making an order for the protection of property of the children who are habitually resident in Australia notwithstanding that the property is situated in a non-Convention country”.
Part XIIIAA Division 4 of the Act sets out the provisions that ground this Court’s jurisdiction for the international protection of children and Subdivision C in particular outlines the provisions relating to the Court’s jurisdiction for decisions relating to a guardian for a child’s property.
Section 111CJ of the Act relevantly provides:-
This Subdivision applies only if an issue under this Act is whether a court, as opposed to any of the following authorities, has jurisdiction to appoint, or determine the powers of, a guardian of a child's property:
(a)A central authority or competent authority of a Convention country;
(b)A competent authority of a non-Convention country.
As observed by Benjamin J in Flemming[2] at [31] – [32]:
Section 111CJ of the Act contemplates that this Court can make an order for the protection of property of a child who is habitually resident in Australia notwithstanding that the property is situate in a non convention country…
…
A reading of the relevant provisions make it clear that the legislature intended that a property protection order can be made in respect of both property and/or children in a non convention country.
[2] [2012] FamCA 985.
I am satisfied that in appropriate circumstances this Court may exercise jurisdiction in relation to the appointment of a guardian in relation to a child’s property, even if that property is situated in a non-Convention country.
Section 111CK of the Act specifies the circumstances and manner in which the Court may exercise jurisdiction for appointing, or deciding the powers of, a guardian of the child's property, referred to as a ‘Commonwealth property protection measure’.
The only basis for the exercise of jurisdiction in this application is sub-section (1)(a) of that provision which stipulates that a court may exercise jurisdiction for a Commonwealth property protection measure in relation to a child who is habitually resident in Australia.
The question of “habitual residence” was considered by the Full Court in Secretary, Department of Family and Community Services & Padwa (2016) FLC 93-701 (“Padwa”). In that case, in discussing the relevant governing principles, reference was made to the High Court case of LK[3] which concluded that the issue of habitual residence is a question of fact and thus distinct from the question of a child’s domicile status. The effect of these authorities combined is that there has been a “shift away” from shared parental intention in determining habitual residence and attention should be given to whether presence at a particular place has a “degree of settled purpose from the child’s perspective”.
[3] LK v D.G. Department of Community Services (2009) 232 CLR 582.
In accordance with the authorities, the date of determination of the matter (in this case 14 December 2020) is the relevant day in determining habitual residence.[4]
[4] See Bunyon v Lewis (No.3) [2013] FamCA 888, Sun & Long [2019] FamCA 3 and Duckworth & Jamison (2014) Fam LR 471.
Having regard to the particular circumstances of this family, I am satisfied that the children are likely to be in settled living circumstances in Australia. Those circumstances include the fact that the children have lived exclusively in Australia since September 2017, have acquired permanent residence in Australia in late 2019 and have also been enrolled at a local primary school which they have attended for over three years.
Currently, the children live in a home with the father and his partner that was recently purchased in the father’s sole name. While the father’s intention to live in Australia with the children and apply for their Australian citizenship is not determinative in assessing habitual residence from the children’s perspective, I attach weight to the reality that since the mother’s death in June 2016, the father has been the children’s primary carer with whom they have consistently lived and are likely to continue to live.
It is also significant in my view that both children were of tender ages (aged below 10) when they relocated to Australia with their father in 2017 and it is therefore likely that any memory of their settled living arrangement in the overseas country has paled against their continued physical presence in Australia.
In the foregoing circumstances, I am satisfied that the children were habitually resident in Australia on the relevant day, being 14 December 2020.
Although the Court’s discretionary exercise of jurisdiction under s 111CK for children who are habitually resident in Australia is further limited by s 111CK(4) of the Act which brings into effect the relevant limitations contained in ss 111CL, 111CM and 111CO, as none of these limitations apply, I find that I have jurisdiction to determine the father’s application.
Should the father be appointed legal guardian of the children’s property interests?
As outlined in written submissions and his affidavit evidence, the father seeks to be appointed legal guardian of the children’s property interests in order to have the ability to sell the property situated in the overseas country and place the proceeds of such sale in trust for the children.
According to the father’s evidence the value of the property is approximately $155,000, and therefore if sold, each child would be entitled to an amount totalling $51,666.
Although the father initially proposed to retain the children’s property interests in a trust account in the overseas country, he has been unable to establish the relevant trust as result of difficulties associated with the COVID-19 pandemic. The father has now established a trust account in Australia and a copy of the family trust deed is attached to his supplementary affidavit.
The father proposes in his Initiating Application that his powers as guardian of the children’s property interests upon sale of the property be limited to holding each child’s interest in trust, paying each child the capital and accumulated interest in respect of those trusts upon them turning 18 years old, and that each trust “be administered in accordance with the Trustee Act 1925 (NSW)”.
On the basis that the father seeks an order that the trust established for the children be managed under the Trustee Act 1925 (NSW), I am satisfied that the orders sought are appropriately directed to the protection of the property of both children.
While it had not been raised with the father whether two trustees should be appointed in order to further safeguard each child’s interest, I consider the sums involved are relatively modest and I also attach weight to the children’s ages and the father’s financial capacity. The father deposes to earing an annual income of $385,000, holding assets in the overseas country valued at $173,713 (excluding his 1/3 share in the subject property), possessing household goods and jewellery jointly owned with his partner worth over $40,000, holding funds in the bank totalling $210,000 and having a superannuation entitlement worth just over $50,000. He also deposes that his liabilities include his mortgage to the Australian bank ($1.7m) and leases for two vehicles amounting to $110,000.
In these circumstances, and given the father’s proposal that the trust be administered in accordance with the Trustee Act 1925 (NSW), I have no reason not to accept the father’s evidence that he intends to be appointed legal guardian of the children’s property interests so as to sell the property, place the children’s respective interests in the sale proceeds in trust and account to them the capital and accumulated interest in respect of those trusts upon them attaining the age of 18 years.
Having regard to the foregoing matters, I consider that appointing the father as legal guardian and determining his powers as discussed, are an appropriate exercise of jurisdiction under s 111CK. Orders are made accordingly.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam. Associate:
Dated: 18 June 2021
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