Family Law (Child Abduction Convention) Amendment Regulations 2000 (No. 2) 2000 No. 275
EXPLANATORY STATEMENT
Statutory Rules 2000 No. 275
Issued by the Authority of the Attorney-General
Family Law Act 1975
Family Law (Child Abduction Convention) Amendment Regulations 2000 (No. 2)
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 the Republic of Costa Rica, the Republic of the Fiji Islands, and Turkey, 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.
Australia deposited its declaration of acceptance of the accession of the Republic of Costa Rica and the Republic of the Fiji Islands with the Netherlands Ministry of Foreign Affairs on 24 February 2000. Therefore, in accordance with Article 38 of the Convention, the Convention entered into force between Australia and both the Republic of Costa Rica and the Republic of the Fiji Islands on 1 May 2000. As Turkey was an original signatory to the Convention, in accordance with Article 43 the Convention came into force between Australia and Turkey on 1 August 2000 without the need for any action on the part of the Australian Government.
Details of the proposed regulations are as follows:
Regulation 1 is formal.
Regulation 2 amends Schedule 2 of the Regulations to insert details relating the Republic of Costa Rica, the Republic of the Fiji Islands, and Turkey. Turkey has made a reservation in respect of Article 26, third paragraph, of the Convention, so that it may require payment from the applicant towards the costs and expenses of proceedings, or those relating to legal counsel or advisers.
The proposed regulations would commence on gazettal.
Overview
The Family Law (Child Abduction Convention) Amendment Regulations 2000 (No. 2) were enacted to update the list of countries under the 1980 Hague Convention on the Civil Aspects of International Child Abduction to which the Family Law Act 1975 applies. This legislation was introduced by the Australian Parliament to align the Family Law Act with the evolving international landscape by adding the Republic of Costa Rica, the Republic of the Fiji Islands, and Turkey to the schedule of countries. The regulations were made under the authority of the Attorney-General, in accordance with section 111B of the Family Law Act, to ensure Australia can meet its obligations under the Convention. The primary objective of these regulations is to facilitate the prompt return of children wrongfully removed or retained in these newly included countries, thereby upholding the rights of custody and access as stipulated by the Convention.
Scope and Application
The Family Law (Child Abduction Convention) Amendment Regulations 2000 (No. 2) 2000 No. 275 are made under the authority of the Family Law Act 1975 and are designed to update the list of convention countries in Schedule 2 of the Family Law (Child Abduction Convention) Regulations, specifically adding the Republic of Costa Rica, the Republic of the Fiji Islands, and Turkey. This regulatory amendment is intended to facilitate the implementation of the 1980 Hague Convention on the Civil Aspects of International Child Abduction in these newly recognised countries. The regulations serve to enable Australia to meet its obligations under the Convention, ensuring that rights of custody and access to children are effectively respected in these countries. The addition of these countries into the schedule reflects Australia’s commitment to the Convention's objectives, which include the prompt return of children wrongfully removed to or retained in member countries. The regulations also account for Turkey's reservation regarding Article 26, third paragraph, allowing for potential cost-sharing in legal proceedings. These regulations, upon gazettal, will extend the jurisdictional reach of the Family Law Act 1975 to encompass these countries in matters pertaining to international child abduction.
Key Provisions
The Family Law (Child Abduction Convention) Amendment Regulations 2000 (No. 2) (the Regulations) primarily focus on updating the list of countries that are parties to the Hague Convention on the Civil Aspects of International Child Abduction. According to Regulation 2, these Regulations amend Schedule 2 of the Family Law (Child Abduction Convention) Regulations to include the Republic of Costa Rica, the Republic of the Fiji Islands, and Turkey. This addition signifies Australia's acceptance of the Convention with these countries, effective from their respective entry into force dates as outlined in the Regulations.
These Regulations impose specific obligations on parties involved in child abduction cases under the Convention. For instance, they mandate the prompt return of children who have been wrongfully removed to or retained in a Convention country. Additionally, they require adherence to the rights of custody and access to children as recognised by the laws of the country where the child habitually resides. This ensures that the welfare and legal rights of children in international child abduction cases are protected and upheld.
Failure to comply with the provisions of these Regulations, or the Convention itself, can result in various consequences. While the Regulations do not explicitly outline specific penalties, breaches of the Family Law Act 1975, which the Regulations are designed to support, can lead to both civil and criminal liabilities. Civil penalties can include fines and other monetary sanctions, while criminal penalties can involve imprisonment, reflecting the seriousness with which the law treats non-compliance in these matters.
It is crucial for legal practitioners to be aware of these amendments as they directly impact the handling of international child abduction cases. Ensuring compliance with these Regulations is essential for facilitating the prompt and lawful return of children and for respecting the custodial and access rights established by the Convention. Additionally, understanding the specific obligations and potential consequences can aid in advising clients and in the preparation of legal strategies in such complex family law matters.