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1995 No. 296 FAMILY LAW (CHILD ABDUCTION CONVENTION) REGULATIONS (AMENDMENT) - REG 26

26. New Part 5
26.1 Before Schedule 1, insert:

"PART 5-GENERAL Reports by court counsellors and welfare officers

"26. (1) In proceedings under these Regulations in a court, the court may:

   (a)  direct a court counsellor or welfare officer to report to the court on
        such matters that are relevant to the proceedings as the court
        considers to be appropriate; and

   (b)  adjourn the proceedings until the report is made.

"(2) A court counsellor or welfare officer may include in a report, in
addition to the matters required to be included in the report, any other
matter that relates to the welfare of the child.

"(3) The court may make such orders, or give such further directions, as it
considers appropriate in relation to the preparation of the report including,
if the court considers it appropriate, orders or directions in relation to the
attendance on the court counsellor or welfare officer of a party to the
proceedings or of the child.

"(4) If a person fails to comply with any order or direction under
subregulation (3), the court counsellor or welfare officer must report the
failure to the court.

"(5) If, under subregulation (4), a court counsellor or welfare officer
reports to the court a failure of the kind referred to in that subsection, the
court may give such further directions in relation to the preparation of the
report as the court considers appropriate.

"(6) A report made to the court in accordance with a direction given under
this regulation may be received in evidence in any proceedings under these
Regulations.

Service of notice of certain applications

"27. (1) Subject to subregulation (2), notice of an application under
regulation 14, 24 or 25 that includes a copy of the application must be served
by the applicant in accordance with the Rules of Court on:

   (a)  the person or persons who removed or retained the child in relation to
        whom the application is made; and

   (b)  the person, institution or other body in possession of the child; as
        each case requires.

"(2) In accordance with the Rules of Court, the court to which an application
referred to in subregulation (1) is made may dispense with service of notice
of the application under that subregulation.

Change of venue

"28. (1) If, before an application (in this regulation called an 'original
application') made under regulation 14, 24 or 25 to a court in a State or
Territory is determined the child who is the subject of the application is
located in another State or Territory:

   (a)  the responsible Central Authority for the other State or Territory may
        make a corresponding application to another registry of the court, or
        to another court, in the other State or Territory (in this regulation
        called a 'later application'); and

   (b)  if a later application is made-the responsible Central Authority for
        the other State or Territory:

        (i)    must refer in the later application to the original
               application; and

        (ii)   must, as soon as practicable, inform the Registrar of the
               first-mentioned court in writing of the later application.

"(2) As soon as practicable after being informed under subparagraph (1) (b)
(ii), the court to which an original application is made must transfer all
records, and other documents filed in the court, relating to the original
application to the Registrar of the court to which a later application is
made.

"(3) Subject to subregulation (4), proceedings in relation to an original
application are taken to have been discontinued when a later application is
made.

"(4) If an order is made before proceedings are discontinued by operation of
subregulation (2), the order remains in force until an order is made in
relation to a later application.

"(5) In proceedings in relation to a later application, the court may have
regard to:

   (a)  a record, or another document filed in the court, in relation to an
        original application; and

   (b)  evidence given to a court in relation to an original application.

Evidentiary provisions

"29. (1) In proceedings under these Regulations in a court:

   (a)  an application under regulation 13, 14, 24 or 25 or any document
        attached to or forwarded in support of that application is admissible
        as evidence of the facts stated in the application or document; and

   (b)  the affidavit of a witness that is filed in the proceedings is
        admissible as evidence in the proceedings despite his or her
        non-attendance for cross-examination in the proceedings.

"(2) In proceedings under these Regulations in a court, a statement contained
in a document that purports:

   (a)  to set out or summarise evidence given in proceedings in a court in a
        convention country, or before a competent authority of that country,
        in relation to the custody of a child and to have been signed by the
        person before whom the evidence was given;

   (b)  to set out or summarise evidence taken into a convention country for
        the purposes of proceedings under these Regulations (whether in
        response to a request made by the court or otherwise) and to have been
        signed by the person before whom the evidence was taken; or

   (c)  to have been received as evidence in proceedings in a court in a
        convention country or before a competent authority of that country in
        relation to the custody of a child and to have been signed by a judge
        or other officer of the court or that authority; is admissible as
        evidence of any fact stated in the document to the same extent as oral
        evidence of that fact, without proof of the signature of the person
        purporting to have signed it or of the official position of that
        person.

"(3) In proceedings under these Regulations in a court, the court may take
judicial notice of the following matters:

   (a)  a law in force in a convention country;

   (b)  a decision of a judicial or administrative character made by a
        judicial or administrative authority of a convention country.

"(4) In proceedings under these Regulations in a court, a document that
purports:

   (a)  to be an order, or a copy of an order, of a court in a convention
        country, or a decision of a competent authority of that country, in
        relation to the custody of a child; and

   (b)  to have been signed by a judge or other officer of the court or by
        that authority; is admissible as evidence of that order or decision,
        as the case may be, without proof of the signature of the person
        purporting to have signed it or of the official position of that
        person.

Costs of applications

"30. If a court makes an order under regulation 15, 17, 24 or 25 the court
may, on the application of the responsible Central Authority, make an order
directing that the necessary expenses incurred by or on behalf of the
applicant, including:

   (a)  travelling expenses; and

   (b)  costs incurred in respect of locating a child; and

   (c)  costs of legal representation of the applicant; and

   (d)  expenses incurred in respect of the return of the child; be paid by
        the person who removed the child to, or retained the child in,
        Australia or who prevented the exercise of rights of access, as the
        case may be.". 


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