Family Law (Child Abduction Convention) Amendment Regulations 1999 (No. 1) 1999 No. 222
EXPLANATORY STATEMENT
Statutory Rules 1999 No. 222
Issued by the Authority of the Attorney‑General
Family Law Act 1975
Family Law (Child Abduction Convention) Amendment Regulations 1999 (No. 1)
Subsection 125(1) of the Family Law Act 1975 (the Act) empowers the Governor‑General to make regulations prescribing all matters necessary to be prescribed for the purposes of the Act.
Section 111B of the Act provides that the regulations may make such provision as is necessary to enable Australia to perform its obligations, or obtain any advantage or benefit, under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the Convention).
The objects of the Convention are to secure the prompt return of children wrongfully removed to or retained in any Convention country, and to ensure that rights of custody and access to children under the laws of a Convention country are effectively respected in the other Convention countries.
Australia signed and ratified the Convention on 25 October 1986, and the Convention came into force for Australia on 1 January 1987.
The purpose of the proposed regulations is to add Macau, Montserrat, Bermuda, Republic of Paraguay and Belgium to the list of convention countries in Schedule 2 of the Family Law (Child Abduction Convention) Regulations. The list also records the dates on which the convention entered into force between Australia and these countries. The operation of the convention was extended to Macau by Portugal on 2 December 1998, and consequently, in accordance with Article 43, the Convention entered into force between Australia and Macau on 1 March 1999. The operation of the Convention was extended to Montserrat and Bermuda by the United Kingdom on 10 December 1998, and consequently, in accordance with Article 43, the Convention entered into force between Australia and Montserrat and Bermuda on 1 March 1999. In these circumstances, no further action was required by Australia, as Portugal and the United Kingdom were members of the Hague Conference at the time the Convention was adopted. The extension of the Convention to Macau, Montserrat and Bermuda therefore operates as if it were a ratification.
Australia officially accepted the accession of the Republic of Paraguay to the Convention on 4 January 1999. Therefore, in accordance with Article 38 of the Convention, the Convention will enter into force between Australia and Paraguay on 1 April 1999.
Belgium ratified the Convention on 9 February 1999 and in accordance with Article 43, paragraph 2, the convention entered into force between Australia and Belgium on 1 May 1999.
Details of the proposed regulations are as follows:
Regulation 1 is formal.
Regulation 2 amends Schedule 2 of the Regulations to insert details relating to Macau, Montserrat, Bermuda, Republic of Paraguay and Belgium, including the provisions of the Convention in respect of which either country has made reservations. Montserrat and Bermuda have entered reservations under Article 26 (third paragraph) of the Convention excluding its liability for legal costs arising from court proceedings except insofar as those costs may be covered by its legal aid system.
The proposed regulations would commence on gazettal.
Overview
The Family Law (Child Abduction Convention) Amendment Regulations 1999 (No. 1) were enacted by the Australian government to address the need for updating the list of countries that are party to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. This convention aims to secure the prompt return of children wrongfully removed or retained in other member countries and ensure that custody and access rights are respected. The regulations were issued under the authority of the Attorney-General, pursuant to the powers granted by the Family Law Act 1975, specifically section 111B, to enable Australia to meet its obligations under the Convention. The amendment regulation updates Schedule 2 of the existing Family Law (Child Abduction Convention) Regulations to include Macau, Montserrat, Bermuda, Republic of Paraguay, and Belgium, reflecting the dates these countries became party to the Convention. The regulations were designed to commence on gazettal, ensuring timely compliance with international obligations.
Scope and Application
The Family Law (Child Abduction Convention) Amendment Regulations 1999 (No. 1) are designed to align Australian legislation with recent developments under the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The Act applies to individuals and entities involved in international child custody disputes, specifically those who have wrongfully removed or retained a child in a signatory country. The amendment extends the jurisdictional reach of the Convention to include Macau, Montserrat, Bermuda, the Republic of Paraguay, and Belgium, reflecting the global nature of the Convention's objectives. The regulations are crafted to ensure compliance with the Convention's mandates by updating the list of countries and the effective dates of the Convention's application to these new countries. Any exclusions or reservations made by these countries, such as those concerning legal costs in Montserrat and Bermuda, are incorporated into the regulations. The regulations do not impose additional burdens but rather facilitate the prompt return of children and respect for custody and access rights in signatory nations. These amendments will commence upon gazettal, thereby integrating these new countries into Australia's legislative framework concerning international child abduction.
Key Provisions
The main operative sections of the Family Law (Child Abduction Convention) Amendment Regulations 1999 (No. 1) pertain to the addition of new countries to the list of convention countries under the Family Law Act 1975. Regulation 2 specifically amends Schedule 2 of the Family Law (Child Abduction Convention) Regulations to include Macau, Montserrat, Bermuda, Republic of Paraguay, and Belgium. These amendments reflect the dates on which the Convention entered into force between Australia and these respective countries, with specific entries detailing any reservations made by the countries under the Convention. Regulation 1 serves as a formal provision.
These regulations impose certain obligations on parties and entities involved in child custody disputes under the Convention. Specifically, they necessitate that Australia adhere to the terms and conditions of the 1980 Hague Convention on the Civil Aspects of International Child Abduction. By adding new countries to the list in Schedule 2, the regulations ensure that the rights of custody and access to children are respected across these jurisdictions. The inclusion of reservations by Montserrat and Bermuda under Article 26 of the Convention must also be adhered to, limiting their liability for legal costs unless covered by their legal aid systems.
The Family Law (Child Abduction Convention) Amendment Regulations 1999 (No. 1) do not explicitly outline specific offences, penalties, or consequences for breaches of the regulations themselves. However, breaches of the underlying Family Law Act 1975 and the Convention could lead to various legal repercussions. Under the Family Law Act, failure to comply with orders or provisions can result in fines or imprisonment. Additionally, the Convention itself does not prescribe penalties but relies on domestic laws to enforce its provisions. In Australia, this could mean that failure to comply with the Convention’s requirements could lead to legal actions under the Family Law Act, potentially resulting in penalties such as fines or imprisonment as prescribed by the Act.