Family Law (Child Abduction Convention) Regulations (Amendment) 1997 No. 347
EXPLANATORY EXPLANATION
STATUTORY RULES 1997 No. 347
Issued by the Authority of the Attorney-General
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 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 Regulations is to add South Africa and Georgia to the list of convention countries in Schedule 2 of the Family Law (Child Abduction Convention) Regulations as between Australia and which the Convention has entered into force. Australia officially accepted the accessions of South Africa and Georgia to the Convention on 31 October 1997. Therefore, in accordance with Article 38 of the Convention, the Convention will enter into force between Australia and these acceding countries on 1 January 1998.
Details of the Regulations are as follows:
Regulation 1 is formal.
Regulation 2 amends Schedule 2 of the Regulations to insert details relating to South Africa and Georgia, including the provisions of the Convention in respect of which either country has made reservations. South Africa has entered reservations under Article 24 of the Convention objecting to the use of French in communications to its Central Authority and 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 Regulations commenced on gazettal.
Authority: Section 125 of the Family Law Act 1975.
Overview
The Family Law (Child Abduction Convention) Regulations (Amendment) 1997 No. 347, issued under the authority of the Attorney-General, amend the Family Law (Child Abduction Convention) Regulations to align with Australia’s international obligations under the 1980 Hague Convention on the Civil Aspects of International Child Abduction. Enacted by the Australian Parliament, these regulations seek to address the gap in the existing legal framework by updating the list of countries with which Australia has entered into the Convention, specifically adding South Africa and Georgia. The objective of these amendments is to facilitate the prompt return of children wrongfully removed or retained in these countries and to ensure that custody and access rights are effectively respected across member nations. This legislative action ensures Australia’s compliance with Article 38 of the Convention, which mandates that the Convention will enter into force between Australia and the acceding countries on 1 January 1998.
Scope and Application
The Family Law (Child Abduction Convention) Regulations (Amendment) 1997 No. 347 amends the Family Law (Child Abduction Convention) Regulations to include South Africa and Georgia as Convention countries in the Schedule, thereby extending the application of the 1980 Hague Convention on the Civil Aspects of International Child Abduction to these jurisdictions. The Family Law Act 1975 authorises the regulations to be made under section 125, and the purpose of this amendment is to align Australia’s regulatory framework with the accession of South Africa and Georgia to the Convention, which took effect on 1 January 1998. This amendment ensures that Australia can perform its obligations under the Convention with respect to these countries, facilitating the prompt return of children wrongfully removed to or retained in these jurisdictions and ensuring that custody and access rights are respected across borders. The Regulations were enacted to reflect the updated list of Convention countries, incorporating specific reservations made by South Africa regarding language and legal costs, as per Articles 24 and 26 of the Convention. The amendment came into effect immediately upon gazettal, thereby extending the jurisdictional reach of the Convention to include these two new countries.
Key Provisions
The Family Law (Child Abduction Convention) Regulations (Amendment) 1997 No. 347, under Section 125(1) of the Family Law Act 1975, mandate the addition of South Africa and Georgia to the list of convention countries outlined in Schedule 2 of the Family Law (Child Abduction Convention) Regulations. Regulation 2 specifically updates Schedule 2 to include details concerning South Africa and Georgia, including any reservations these countries have made under the 1980 Hague Convention on the Civil Aspects of International Child Abduction. South Africa has reservations under Article 24, objecting to the use of French in communications with its Central Authority, and under Article 26, excluding its liability for legal costs from court proceedings except when covered by its legal aid system.
The amendments impose obligations on parties involved in international child abduction cases with South Africa and Georgia. These obligations include respecting the reservations made by these countries, particularly regarding language use in communications and the handling of legal costs. Parties must ensure that any communications with South Africa's Central Authority are not in French and must be aware of the potential financial implications of court proceedings in Georgia. Furthermore, legal representatives must adhere to the specific provisions outlined in the Convention regarding these countries.
Failure to comply with the provisions set out in these Regulations may lead to legal consequences. While the specific penalties for breach are not detailed in the text, it is reasonable to infer that breaches could result in civil or criminal penalties under the Family Law Act 1975. Such penalties could include fines or imprisonment, depending on the severity of the breach and the discretion of the court. The precise nature and extent of the penalties would be determined by the courts based on the specific circumstances of the case and the applicable legal framework.