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, amends the existing regulations to update the list of countries with which Australia has entered into the 1980 Hague Convention on the Civil Aspects of International Child Abduction. This legislation was enacted to ensure Australia’s compliance with the Convention and to facilitate the prompt return of children who have been wrongfully removed or retained in signatory countries. By adding South Africa and Georgia to the list of Convention countries, the Regulations aim to enhance Australia's ability to uphold its international obligations under the Convention, which seeks to secure the prompt return of children and to ensure that custody and access rights are effectively respected across member states. The Regulations were authorised by Subsection 125(1) of the Family Law Act 1975 and commenced on gazettal.
Scope and Application
The Family Law (Child Abduction Convention) Regulations (Amendment) 1997 pertains to the application and implementation of the Family Law Act 1975, specifically concerning the 1980 Hague Convention on the Civil Aspects of International Child Abduction. This legislation applies to persons and entities involved in child custody and access disputes that cross international borders, particularly within the member countries of the Convention. It addresses wrongful removal or retention of children in member countries, ensuring that custody and access rights are respected across jurisdictions. The geographic and jurisdictional reach of these regulations is national, as they govern the interaction between Australian and international law in matters of child abduction. These regulations extend the application of the Convention to include South Africa and Georgia, thereby updating the list of Convention countries in Schedule 2 of the Family Law (Child Abduction Convention) Regulations. The amendment was made to reflect Australia's acceptance of these countries' accessions to the Convention, effective from 1 January 1998. The Regulations themselves do not detail any specific exclusions or exemptions beyond the reservations made by South Africa under the Convention. The application and enforcement of these regulations may be further detailed or expanded upon through subordinate instruments issued under the authority of the Attorney-General.
Key Provisions
The Family Law (Child Abduction Convention) Regulations (Amendment) 1997 No. 347 primarily serves to update the existing regulations by adding South Africa and Georgia to the list of Convention countries under the Hague Convention on the Civil Aspects of International Child Abduction. This amendment is detailed in Regulation 2, which modifies Schedule 2 of the Regulations to include these two countries (sections 1 and 2). This regulatory change ensures that the Convention's provisions, including any reservations made by these countries, are incorporated into Australian domestic law.
These Regulations impose specific obligations on parties involved in international child abduction cases concerning South Africa and Georgia. Primarily, they mandate that Australian authorities must facilitate the prompt return of children wrongfully removed or retained in these countries, in line with the Convention's objectives. Additionally, the Regulations require that the rights of custody and access to children under the laws of a Convention country are respected and enforced in Australia. This includes recognising and enforcing court or administrative authority decisions from South Africa and Georgia concerning child custody and access, subject to the reservations made by these countries, such as those regarding the use of French in communications and liability for legal costs (Regulation 2).
Violations of these Regulations can lead to various legal consequences. While the specific offences and penalties are not detailed within the Regulations themselves, breaches of the Family Law Act 1975 or failure to comply with its regulations can result in civil or criminal penalties. Under the Act, individuals who remove or retain a child in breach of a custody or access order can face fines or imprisonment. Additionally, authorities may seek orders for the return of the child and may impose penalties on those who obstruct the enforcement of these orders. The exact penalties would depend on the specific circumstances of the case and the jurisdiction's legal provisions.