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 by the Australian Parliament to align the Family Law Act 1975 with recent accessions to the Hague Convention on the Civil Aspects of International Child Abduction. This legislation addresses the problem of ensuring that Australia’s obligations under the Convention are updated to reflect the addition of new member countries. The regulations amend the Family Law (Child Abduction Convention) Regulations 1986 to include El Salvador, Estonia, Latvia, Peru, and Sri Lanka as Convention countries, effective from 1 January 2003. The policy objective of these amendments is to facilitate compliance with Australia’s international obligations under the Convention, thereby enhancing the protection of children in cases of international abduction. The Regulations were issued under the authority of the Attorney-General and commenced on gazettal, though their effects were retroactive to the date of Australia’s acceptance of the accessions of the listed countries.
Scope and Application
The Family Law (Child Abduction Convention) Amendment Regulations 2003 (No. 1) applies to the Family Law Act 1975, specifically in relation to the Hague Convention on the Civil Aspects of International Child Abduction. These regulations are made pursuant to Section 125 of the Family Law Act 1975, which allows the Governor-General to prescribe regulations necessary to carry out or give effect to the Act. The purpose of these amendments is to update the list of Convention countries by adding El Salvador, Estonia, Latvia, Peru, and Sri Lanka, which have recently acceded to the Convention. The regulations are designed to ensure that Australia meets its obligations under the Convention and to provide a mechanism for the protection of children against international abduction.
The regulations apply to any person or entity involved in child custody disputes that cross international borders, specifically to Convention countries. This includes families, legal practitioners, and courts dealing with international child abduction cases. The amendments extend Australia’s jurisdictional reach to include the newly acceded countries, ensuring that the provisions of the Convention are uniformly applied. The amendments do not introduce any exclusions, exemptions, or thresholds, but they do clarify the scope of Convention countries by updating Schedule 2 of the Family Law (Child Abduction Convention) Regulations 1986. The regulations commenced upon gazettal, although their application was retroactively effective from 1 January 2003, aligning with the dates the Convention entered into force for the newly acceded countries.
Key Provisions
The Family Law (Child Abduction Convention) Amendment Regulations 2003 (No. 1) primarily serve to update the list of countries that are party to the Hague Convention on the Civil Aspects of International Child Abduction. Specifically, sections of the regulations detail the addition of El Salvador, Estonia, Latvia, Peru, and Sri Lanka to the existing list of Convention countries in Schedule 2 of the Family Law (Child Abduction Convention) Regulations 1986. This addition formalises the relationship between Australia and these countries under the Convention, ensuring that the legal frameworks governing international child abduction apply to these newly listed countries.
These regulations impose certain obligations and requirements on the parties involved. For instance, they mandate that legal authorities in Australia must recognise the rights and obligations arising from the Convention in their dealings with the newly listed countries. This includes the enforcement of child return orders issued by courts in these countries, ensuring that children wrongfully removed or retained in breach of custody rights are returned to their habitual residence. Additionally, the regulations require that all relevant authorities in Australia must be aware of the updated list of Convention countries to correctly apply the provisions of the Convention.
Failure to comply with the provisions of these regulations may result in legal consequences. While the specific offences and penalties are not detailed in the explanatory statement, it is understood that breaches of the Family Law Act 1975 or the Convention could lead to civil or criminal penalties. These penalties may include fines or imprisonment, depending on the severity and nature of the breach. The exact penalties would be governed by the relevant sections of the Family Law Act and any applicable state or territory laws.