Family Law (Child Abduction Convention) Regulations (Amendment) 1997 No. 315
EXPLANATORY STATEMENT
STATUTORY RULES 1997 No. 315
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 Colombia and Iceland 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 Colombia and Iceland to the Convention on 17 September 1997. Therefore, in accordance with Article 38 of the Convention, the Convention will enter into force between Australia and these acceding countries on 1 December 1997.
Details of the Regulations are as follows:
Regulation 1 is formal.
Regulation 2 amends Schedule 2 of the Regulations to insert details relating to Colombia and Iceland, including the provisions of the Convention in respect of which either country has made reservations. Iceland 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. 315, issued under the authority of the Attorney-General, amend the Family Law (Child Abduction Convention) Regulations to update the list of countries with which Australia has international agreements on child abduction. Enacted by the Australian Parliament, these regulations align with the 1997 amendments to the Family Law Act 1975, empowering the Governor-General to make necessary regulations to meet Australia's obligations under the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The primary objective of these regulations is to facilitate the prompt return of children wrongfully removed to or retained in Colombia and Iceland, thereby ensuring the effective respect of custody and access rights in line with the Convention’s objectives. These amendments reflect Australia's commitment to international cooperation in family law matters, particularly concerning child abduction, by formally recognising the accession of Colombia and Iceland to the Convention, effective from 1 December 1997.
Scope and Application
The Family Law (Child Abduction Convention) Regulations (Amendment) 1997 No. 315 apply to the regulation and enforcement of the Family Law Act 1975 concerning the prompt return of children who have been wrongfully removed to or retained in another country, specifically targeting those that are parties to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The regulations extend Australia’s obligations under the Convention to include Colombia and Iceland, countries that acceded to the Convention on 17 September 1997 and will see the Convention enter into force in their relations with Australia on 1 December 1997. The scope of the amendment includes ensuring that rights of custody and access to children are respected across these new jurisdictions, while accommodating specific reservations made by Iceland regarding the language of communications and liability for legal costs. The amendment applies to all persons and entities involved in international child custody disputes within the specified jurisdictions and is effective nationally, aligning with Australia’s commitments under the Convention.
Key Provisions
The Family Law (Child Abduction Convention) Regulations (Amendment) 1997 No. 315 amends the Family Law (Child Abduction Convention) Regulations to update the list of convention countries, including the addition of Colombia and Iceland (Regulation 2). This amendment ensures that the Convention’s provisions are applicable to these countries, facilitating the prompt return of children wrongfully removed to or retained in these jurisdictions. Regulation 1 is a formal requirement that provides the necessary legal framework for these amendments.
The regulations impose specific obligations on the parties involved, such as the prompt return of children who have been wrongfully removed or retained in a convention country. The obligations also include respecting the rights of custody and access as determined by the laws of the country from which the child was removed or in which they were retained. The amendments require that all involved parties adhere to the provisions outlined in the Convention, including any reservations made by Colombia and Iceland, such as Iceland’s objection to the use of French in communications and its exclusion of liability for legal costs except as covered by its legal aid system.
Under the Family Law Act 1975, any breach of the regulations can lead to significant consequences. For instance, failure to comply with the requirements for the return of a child may result in legal action, with potential civil penalties. Additionally, non-compliance may expose individuals to criminal charges, which could include imprisonment and fines. While the specific penalties are not detailed in the explanatory statement, the seriousness of these consequences underscores the importance of adhering to the regulations.