This article will discuss the jurisdiction assumption in taking protection measures under the Family Law Act 1975. Sections 111CN to 111CP will tackle:
- the acceptance and rejection of a court to assume jurisdiction
- the limitation if a competent authority of a convention country has to assume jurisdiction
- when a certain Commonwealth property protection measure lapses
Section 111CN: If a Court Has to Assume Jurisdiction
Section 111CN lays out the instances when a court may accept or reject to assume jurisdiction:
- If a court considers that it is in child’s best interests, it may accept/ reject a request under Article 8 of the Child Protection Convention. This is upon the invitation of a competent authority of a Convention country for the court to assume jurisdiction to take a Commonwealth property protection measure relating to the child.
- A court may order or invite the parties to proceedings before the court to ask the Commonwealth central authority to do both of the following if it so considers appropriate:
- to request, under Article 9 of the Child Protection Convention, that a competent authority of a Convention country agree to the court assuming jurisdiction to take a Commonwealth property protection measure relating to the child;
- to report to the court about the outcome of the request.
- The court may only make the order or issue if it considers that it is better placed than the competent authority to assess the child’s best interests.
What is a Commonwealth Property Protection Measure?
The FLA defines “Commonwealth property protection measure” as a measure, within the meaning of the Child Protection Convention, under this Act for appointing or deciding the powers of, a guardian of the child’s property.
Section 111CO: Limitation if a Competent Authority of a Convention Country Has to Assume Jurisdiction
What are the limitations if a competent authority of a convention country has to assume jurisdiction? This section enumerates such limitations.
- The court may order, or invite the parties to proceedings before the court to request the Commonwealth central authority, in a way the Commonwealth central authority considers appropriate, to request a competent authority described in Article 8, paragraph 2, of the Child Protection Convention. These requests are:
- to assume jurisdiction under Article 8 of the Convention for appointing, or deciding the powers of, a guardian of the child’s property;
- to take a measure appointing, or deciding the powers of, a guardian of the child’s property as the competent authority considers necessary;
- to report to the court about the outcome of the request.
- The court order must be of a character that is necessary in relation to the above mentioned requests.
- The court can only issue or order an invitation if it considers the competent authority can better assess the child’s best interests.
- A court must not exercise jurisdiction in accordance with paragraph 111CK(a) or subparagraphs 111CK(1)(b)(iii) to (vi) or paragraph 111CK(1)(c), while the competent authority continues to exercise its jurisdiction, if the competent authority assumes jurisdiction under the request. For a more expansive discussion of these provisions, read this blog post.
Section 111CP: When A Certain Commonwealth Property Protection Measure Lapses
Under Section 111CP, a commonwealth property protection measure lapses if:
- A foreign property protection measure relating to the child is taken by a competent authority of a Convention country.
- The child is habitually resident in the Convention country.
- The child is present in the Convention country and is a refugee child.
- A request to assume jurisdiction is made to the competent authority of the Convention country. They make the request by or at the invitation of, a competent authority of the habitual residence country.
- A competent authority of the country of the child’s habitual residence agrees to the competent authority of the Convention country assuming jurisdiction.
- A competent authority of the Convention country is exercising jurisdiction in proceedings concerning the divorce/ separation or annulment of child’s parents.
- The child has been wrongfully removed from or retained outside the Convention country. And a competent authority of the Convention country keeps jurisdiction under Article 7 of the Child Protection Convention.
A commonwealth property protection measure lapses if a competent authority of the Convention country is exercising jurisdiction in proceedings concerning the divorce/separation or annulment of child’s parents. This only applies in certain circumstances such as:
- one or both of the child’s parents are habitually resident in the Convention country when the proceedings commence; and
- one or both of the parents have parental responsibility for the child; and
- there is an acceptance by the parents and each other person with parental responsibility for the child of the jurisdiction of the competent authority of the Convention country to take the measure; and
- the exercise of jurisdiction to take the measure is in the best interests of the child; and
- the proceedings on the divorce or separation application of child’s parents or the annulment of their marriage are not final
Furthermore, a Commonwealth property protection measure that a court exercising jurisdiction takes in a case of urgency, or in the taking of a measure of a provisional character lapses if:
- a measure required by the situation for the appointment, or the determination of the powers, of a guardian for a child’s property is taken by a competent authority of a non-Convention country; and
- the registration of the measure is in accordance with regulations made for section 70G. Or under a law of a State or Territory.
Seeking Legal Advice for Protection Measures under the FLA
There are several things that a lawyer can do in relation to protection measures under the FLA:
- Help their clients to understand the financial implications of appointing a guardian. The lawyer will explain how the guardian can access and manage the child’s property. Moreover, they will explain how this will affect the child’s financial future.
- Advise their clients on how to choose a guardian. The lawyer will help their client consider the important factors when choosing a guardian. This includes the guardian’s experience, qualifications, and relationship with the child.
- Represent their client at mediation or other forms of alternative dispute resolution. Mediation is a process where the parties to a dispute meet with a mediator to reach an agreement. The lawyer will represent their client’s interests at mediation and help them reach a fair and reasonable outcome.
JB Solicitors can assist you in knowing more about the court’s jurisdiction. We can help with all legal process involved in acquiring a Commonwealth property protection measure. Our team of skilled family lawyers can provide you with advice on your rights and obligations and the options available.
Contact us today.
