Family Law (Child Abduction Convention) Regulations (Amendment) 1997 No. 98
EXPLANATORY STATEMENT
STATUTORY RULES 1997 No. 98
Issued by the Authority of the Attorney-General and Minister for Justice
Family Law Act 1975
Family Law (Child Abduction Convention) Regulations (Amendment)
Subsection 125(1) of the Family Law Act 1975 (the Act) empowers the Governor-General to make regulations 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 under the 1980 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. On 22 April 1986, the Family Law (Child Abduction Convention) Regulations were made to give effect to the Convention for Australia.
The Convention entered into force between Australia and Zimbabwe on 1 April 1996. Regulation 2 amends Schedule 2 of the Regulations to update the list of Convention countries by including Zimbabwe. Regulation 2 also amends Schedule 2 to the Regulations to note the date the Convention came into force between Zimbabwe and Australia and to note that Zimbabwe entered a reservation under Article 26 (third paragraph) of the Convention excluding any liability of the Zimbabwean Government for legal costs arising from court proceedings under the Convention.
The Regulations commenced on gazettal.
Overview
The Family Law (Child Abduction Convention) Regulations (Amendment) 1997 No. 98 were enacted to address the need to update the list of countries that are parties to the 1980 Convention on the Civil Aspects of International Child Abduction, which aims to facilitate the prompt return of children wrongfully removed or retained across international borders. This amendment was made pursuant to the Family Law Act 1975, under the authority of the Australian Parliament. The policy objective is to ensure that Australia's regulations align with its international obligations under the Convention, thereby enhancing the effectiveness of mechanisms designed to protect children from wrongful abduction or retention in other signatory countries. The amendment specifically includes Zimbabwe as a Convention country, reflecting the entry into force of the Convention between Australia and Zimbabwe on 1 April 1996, and acknowledges Zimbabwe's reservation regarding legal costs under Article 26 of the Convention. These regulations commenced upon their gazettal.
Scope and Application
The Family Law (Child Abduction Convention) Regulations (Amendment) 1997 No. 98 applies to persons and entities involved in international child abduction cases within the scope of the Family Law Act 1975. The amendment specifically addresses the Convention on the Civil Aspects of International Child Abduction, enhancing Australia's compliance with its obligations under this international agreement. The amendment extends the jurisdictional reach to include Zimbabwe, effective from the date the Convention came into force between Australia and Zimbabwe, which is 1 April 1996. Notably, the amendment acknowledges Zimbabwe's reservation under Article 26, which excludes the Zimbabwean Government from liability for legal costs arising from court proceedings under the Convention. The amendment to Schedule 2 of the Regulations ensures that the list of Convention countries is updated to reflect this new inclusion. The Regulations commenced upon gazettal and thus apply immediately, with no stated exclusions or thresholds beyond the specific reservation noted for Zimbabwe. The application of these Regulations is further governed by the Family Law Act 1975, and any additional provisions or clarifications may be made through subordinate instruments as necessary.
Key Provisions
The main operative sections of the Family Law (Child Abduction Convention) Regulations (Amendment) 1997 No. 98 are primarily found in Regulation 2. This regulation amends Schedule 2 of the original Family Law (Child Abduction Convention) Regulations to update the list of Convention countries, specifically including Zimbabwe. Additionally, it records the date the Convention came into force between Australia and Zimbabwe, which is 1 April 1996, and notes Zimbabwe's reservation under Article 26 (third paragraph) of the Convention, which excludes the Zimbabwean Government from liability for legal costs arising from court proceedings under the Convention.
The Family Law (Child Abduction Convention) Regulations (Amendment) 1997 No. 98 imposes obligations on the parties involved in international child abduction cases, particularly focusing on the procedures and responsibilities of the Central Authorities in Australia and Zimbabwe. These obligations include ensuring that children who are wrongfully removed to or retained in another Convention country are promptly returned to their country of habitual residence. Furthermore, the Regulations require that the rights of custody and access to children are respected in accordance with the laws of the respective Convention countries.
In terms of consequences for breach, the Family Law (Child Abduction Convention) Regulations (Amendment) 1997 No. 98 does not explicitly outline specific offences, penalties, or consequences within the amendment itself. However, the underlying Family Law Act 1975 does provide a framework for addressing breaches of its provisions. Under the Family Law Act, failure to comply with orders or regulations could lead to various civil or criminal consequences, including fines or imprisonment, depending on the nature and severity of the breach. The exact penalties would be determined in the context of the broader Family Law Act, which can impose fines of up to $22,200 for civil penalties and higher penalties for criminal offences.
Overall, while the specific amendment does not introduce new penalties, it reinforces the importance of adhering to the Convention's objectives and the obligations of the Central Authorities in facilitating the prompt return of children and respecting custody rights across Convention countries.