Federal Circuit and Family Court of Australia (Division 1)

Federal Circuit and Family Court of Australia (Division 1)

Australia

26 October 2021

Re Sherburn

[2021] FedCFamC1F 162

First instance

• Article 3
• Article 5(1)
• Article 15(1)

• Article 1
• Article 15(2)

Family Law Act 1975 (Cth), Trusts Act 1973 (Qld)

Not provided

The case concerned two children habitually resident in Australia who had inherited interests in real property located in France under a will governed by German law. French law required judicial authorisation before the property could be sold on the children’s behalf. After the German Family Court declined jurisdiction on the basis that the competent court was in Australia, where the children were habitually resident, the parents applied to the Federal Circuit and Family Court of Australia for property protection measures under Australia’s implementation of the 1996 Hague Child Protection Convention. The court held that Australia had jurisdiction pursuant to Article 5 because the children were habitually resident there. Referring to Articles 1, 3 and 15 of the Convention, the court appointed the parents as guardians of the children’s property, authorised the sale of the children’s interests in the French property, and directed that the proceeds be held on trust for the children in accordance with Queensland trust law.

The court held that Australia had jurisdiction under Article 5 of the 1996 Hague Child Protection Convention because the children were habitually resident in Australia. The court appointed the parents as guardians of the children's property and authorised them to sell the children's interests in real property located in France. The proceeds of sale were ordered to be held on trust for the children until they reached adulthood, subject to the applicable provisions of Queensland trust law.