Family Law (Child Abduction Convention) Amendment Regulations 2003 (No. 1) 2003 No. 340
EXPLANATORY STATEMENT
Statutory Rules 2003 No. 340
Issued by the authority of the Attorney-General
Family Law Act 1975
Family Law (Child Abduction Convention) Amendment Regulations 2003 (No. 1)
Section 125 of the Family Law Act 1975 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters that are required or permitted by the Act to be prescribed or are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Subsection 111B (1) of the Act provides that the regulations may make such provision as is necessary or convenient to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under the Hague Convention on the Civil Aspects of International Child Abduction (the Convention), which entered into force for Australia on 1 January 1987.
Regulation 10 of the Family Law (Child Abduction Convention) Regulations 1986 (the Abduction Regulations) provides that a Convention country is either a country specified in Schedule 2 of the Abduction Regulations (paragraph 10(a)) or any other country in respect of which the Convention has entered into force for Australia (paragraph 10(b)).
The purpose of the Regulations is to add El Salvador, Estonia, Latvia, Peru and Sri Lanka, which have recently acceded to the Convention, to the list of convention countries in Schedule 2 to the Abduction Regulations.
Article 38 of the Convention sets out the procedures for accession to the Convention and the declaration of acceptance of these accessions. Article 43 provides that the Convention enters into force for countries on the first day of the third calendar month after the deposit of their instruments of ratification, acceptance, approval or accession. On 18 October 2002, Australia deposited its declaration of acceptance of the accessions of the countries listed in accordance with Article 38. The Abduction Convention therefore entered into force between Australia and the countries to be listed on 1 January 2003, in accordance with Articles 38 and 43.
The Act specifies no conditions that need to be met before the power to make the Regulations may be exercised.
The Regulations commenced on gazettal. However, for the purposes of the Act and the Abduction Regulations, Australia's relations with each country to be listed have been effective since Australia's acceptance of their respective accessions became effective, by virtue of paragraph 10(b) of the Abduction Regulations.
Overview
The Family Law (Child Abduction Convention) Amendment Regulations 2003 (No. 1) were enacted to address the need to update the list of countries that have acceded to the Hague Convention on the Civil Aspects of International Child Abduction. This regulation, issued under the authority of the Attorney-General and pursuant to the Family Law Act 1975, aims to ensure that the Family Law Act remains compliant with the evolving international framework for managing child abduction across borders. The policy objective behind these amendments is to facilitate the performance of Australia's obligations under the Convention, particularly in relation to recognising and enforcing the rights of children who have been wrongfully removed or retained in member countries. By including El Salvador, Estonia, Latvia, Peru, and Sri Lanka in the list of Convention countries, the regulation helps to maintain the effectiveness of the international legal mechanisms designed to protect children from abduction and to ensure their timely return to their habitual residence.
Scope and Application
The Family Law (Child Abduction Convention) Amendment Regulations 2003 (No. 1) primarily serves to implement Australia's obligations under the Hague Convention on the Civil Aspects of International Child Abduction. These regulations amend the Family Law (Child Abduction Convention) Regulations 1986 by adding El Salvador, Estonia, Latvia, Peru, and Sri Lanka to the list of countries considered as Convention countries. This inclusion becomes effective pursuant to the Convention's stipulations, which mandate that the Convention enters into force for acceding countries on the first day of the third calendar month following the deposit of their instruments of ratification, acceptance, approval, or accession. The Act provides the legislative framework, empowering the Governor-General to issue these regulations as necessary to fulfill Australia's commitments under the Convention. These regulations apply to any person or entity involved in international child abduction cases concerning the specified countries, thus extending their reach to all relevant parties within the Commonwealth of Australia. The regulations are intended to ensure compliance with the Convention's provisions by recognising the new accessions, thereby facilitating the return of children wrongfully removed or retained in these countries.
Key Provisions
The Family Law (Child Abduction Convention) Amendment Regulations 2003 (No. 1) (the Regulations) amend the Family Law (Child Abduction Convention) Regulations 1986 by adding El Salvador, Estonia, Latvia, Peru, and Sri Lanka to the list of countries bound by the Hague Convention on the Civil Aspects of International Child Abduction (the Convention). This addition is made under section 125 of the Family Law Act 1975 (the Act), which empowers the Governor-General to make regulations for carrying out or giving effect to the Act. The Regulations operate under subsection 111B(1) of the Act, which allows for regulations necessary for Australia's obligations under the Convention. Regulation 10 of the Abduction Regulations defines a Convention country as one specified in Schedule 2 or any other country for which the Convention is in force for Australia. By virtue of the Regulations, the listed countries now constitute Convention countries as per Regulation 10(b) of the Abduction Regulations.
The Regulations impose specific obligations on the parties involved in international child abduction cases under the Convention. For instance, they require that the Central Authorities of the listed countries, in collaboration with the Australian Central Authority, adhere to the Convention’s stipulations to ensure the swift return of children who have been wrongfully removed or retained in breach of custody rights. The obligations include the prompt exchange of information, cooperation in legal proceedings, and the facilitation of communication between the parents and the child. Furthermore, the Regulations necessitate that the Australian Central Authority, as well as the authorities of the listed countries, take appropriate steps to enforce custody decisions made in accordance with the Convention.
Breach of the Convention or non-compliance with the Regulations may lead to various consequences. Under the Act, there are civil remedies available for those who have custody rights and whose children are wrongfully removed or retained. Additionally, there may be criminal penalties for those who facilitate or are complicit in the abduction. The maximum penalties for such criminal offences can include fines and imprisonment, although the specific penalties are determined by the relevant state or territory law rather than the Regulations themselves. The Regulations also provide that any failure to comply with the Convention or the Regulations may result in legal actions being taken under domestic law, which can lead to further civil or criminal consequences.