This article will discuss Sections 111CJ to 111CM of the Family Law Act 1975. These Sections set out the rules as to the jurisdiction for decisions about a guardian of a child’s property.
The law mandates that parents must designate a party to care for their children if they pass away while the children are under the age of 18. Those people are “guardians.” Making the right decision when choosing their guardian ensures that you are happy with the person who will look after your kids.
Guardianship of a child’s property ensures the proper management and protection of a child’s assets until they reach adulthood. In NSW, the law provides for the appointment of a guardian to oversee a child’s financial affairs. A parent or legal guardian can appoint a guardian for their child’s property by making a Will.
If a parent or legal guardian does not make a Will, the court may appoint a guardian if it is in the best interests of the child. The court may also appoint a guardian if the child’s current guardian is no longer able to carry out their duties.
Section 111CJ: Application for this Subdivision
In relation to the jurisdiction for decisions about a guardian of a child’s property, this Section only applies if a question under this Act is whether a court has the power to appoint a guardian of a child’s property or decide what powers that guardian has, instead of the following authorities:
- a central authority or a competent authority of a Convention country;
- a competent authority of a country that isn’t part of the Convention.
Section 111CK: Jurisdiction to Appoint, or Determine the Powers of a Guardian for a Child’s Property
Section 111CK lays out the rules as to the jurisdiction for decisions about a guardian of a child’s property and determination of their powers.
Upon Whom Can the Court Exercise Jurisdiction?
The court may exercise jurisdiction for a Commonwealth property protection measure in relation to the following:
- A child who is habitually resident in Australia; or
- A child who is habitually resident in a country, other than Australia, for which the Child Protection Convention has entered into force (Convention country), if the following requisites concur:
- the protection of the child’s property in Australia requires taking the measure as a matter of urgency; or
- the measure is provisional and limited in its territorial effect to property in Australia; or
- a competent authority of the country of the child’s habitual abuse residence or country or refuge makes a request to assume jurisdiction to the court; or
- a competent authority of the country of the child’s habitual residence or country of refuge agrees to the court assuming jurisdiction; or
- the child faces wrongful removal from, or retention outside Australia and the court keeps jurisdiction under Article 7 of the Child Protection Convention; or
- the court is exercising jurisdiction in proceedings concerning the divorce or separation of the child’s parents or the annulment of their marriage (but see subsection (3) below)
- A refugee child present in Australia;
- A child who is present in a non-Convention country;
- A child who is present in Australia.
When May the Court Exercise Jurisdiction For Decisions About a Guardian?
Section 111CK subsection (2) states that the court may only exercise jurisdiction for decisions about a guardian if the protection measure is not incompatible with a foreign measure that a competent authority of a Convention country takes under Articles 5 to 10 of the Child Protection Convention.
Moreover, subsection (3) adds that if a competent authority of the country of the child’s habitual residence or country of refuge agrees to the court assuming jurisdiction, the court may do so as such if these requirements are satisfied:
- one or both of the child’s parents are habitually resident in Australia when the proceedings referred to in that subparagraph begin; and
- one or both of the parents have parental responsibility for the child; and
- the jurisdiction of the court to take the measure is accepted by the parents and each other person with parental responsibility for the child; and
- the exercise of jurisdiction to take the measure is in the best interests of the child; and
- the proceedings on the application for divorce or separation of the child’s parents or the annulment of their marriage have not been finalised.
Section 111CL: Limitation When a Child Faces Wrongful Removal From, or Retention Outside a Convention Country
The jurisdiction for decisions about a guardian of a child’s property is limited by this Section. It stipulates that a court must not exercise jurisdiction to take a Commonwealth property protection measure relating to a child, other than in a case of urgency, if:
- the child faces wrongful removal from, or retention outside a Convention country; and
- an authority of the Convention country keeps jurisdiction under Article 7 of the Child Protection Convention.
Section 111CM: Limitations When Prior Proceedings Pending in a Convention Country
This Section limits the power of the court to exercise jurisdiction for decisions about a guardian of a child’s property to take a Commonwealth protection measure relating to a child if these circumstances exist:
- there is a corresponding measure that a competent authority of a Convention country has sought at the time of commencement of proceedings before the court; and
- any of the following applies:
- 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 a competent authority of the country of the child’s habitual residence or country of refuge;
- a competent authority of the country of the child’s habitual residence or country of refuge agrees to the competent authority assuming jurisdiction;
- the competent authority of the Convention country is exercising jurisdiction in proceedings concerning the divorce or separation of the child’s parents or the annulment of their marriage;
- 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.
However, the court may exercise jurisdiction for decisions about a guardian of a child’s property if the competent authority of the Convention country has declined jurisdiction or is no longer taking the measure sought.
Seeking Legal Advice for Guardianship Matters
Matters relating to the jurisdiction for decisions about a guardian of a child’s property can be complex. It is important to seek legal advice if you are facing a dispute.
JB Solicitors can assist you in understanding the court’s jurisdiction and the legal process involved in appointing a guardian. Our team of competent family lawyers can also provide you with advice on your rights and obligations, and the options available.
Contact us today.
