Commonwealth Numbered Regulations

FAMILY LAW AMENDMENT REGULATIONS 2004 (NO. 3) 2004 NO. 371 - SCHEDULE 1

(regulation 3)

[1] Part III, Division 1, heading

substitute

Division 1 Overseas child orders

[2] Regulation 23, heading

substitute

23 Registration of overseas child orders

[3] Subregulation 23 (8)

substitute

(8)

This regulation does not prevent a court that has jurisdiction under the Act from receiving evidence of an order made in an overseas jurisdiction (whether or not the jurisdiction is a prescribed overseas jurisdiction), being an order that:

(a)

deals with the person with whom a child is supposed to live or have contact; or

(b)

provides for a person to have custody of, or access to, a child.

[4] Regulation 24

substitute

24 Transmission of orders to overseas jurisdiction
(1) This regulation applies if:

(a)

a residence order, contact order, specific issues order, or State child order is made by a court in Australia in relation to a child who is under 18; and

(b)

the order may be enforced in a prescribed overseas jurisdiction under provisions corresponding to Subdivision C of Division 13 of Part VII of the Act.

(2)

If the registrar of the court in which the order was made, registered or last varied, receives a written request from a person mentioned in subregulation (3) to send the order to the prescribed overseas jurisdiction for registration and enforcement in that jurisdiction, the registrar must send the documents mentioned in subregulation (4) to the appropriate court or authority in the prescribed overseas jurisdiction.

(3)

For subregulation (2), a request may be made by a person:

(a)

with whom the child is supposed to live or have contact under the order; or

(b)

who has a right to custody of, or access to, the child under the order.

(4)

For subregulation (2), the documents are as follows:

(a)

3 certified copies of the order;

(b)

a certificate signed by the registrar stating that the order is, at the date of the certificate, enforceable in Australia;

(c)

any information and material the registrar holds that may assist in identifying and locating the child or any other person who is subject to the order;

(d)

a request in writing that the order be made enforceable in the prescribed overseas jurisdiction.

(5)

If:

(a)

the order is registered in a court in the prescribed overseas jurisdiction; and

(b)

a court in that jurisdiction makes an order under a law corresponding to section 70J of the Act (the overseas order );

a court having jurisdiction under the Act may treat the overseas order as an overseas child order for the purposes of exercising jurisdiction under that section.

(6)

If a court exercises jurisdiction under section 70J of the Act in relation to a child who is the subject of the overseas order, the registrar of the court must send to the court in the prescribed overseas jurisdiction:

(a)

3 certified copies of any order made by the court and the reasons for the order; and

(b)

such further material as the court directs.

(7)

Nothing in this regulation prevents a person having a right of custody of, access to or contact with, a child under the order from:

(a)

obtaining certified copies of the order; or

(b)

applying to a court in an overseas jurisdiction (whether or not it is a prescribed overseas jurisdiction) for registration and enforcement of the order in that jurisdiction.

(8)

In this regulation:

"custody", in relation to a child, includes:

(a)

guardianship of the child; and

(b)

responsibility for the long-term or day-to-day care, welfare and development of the child; and

(c)

responsibility as the person or persons with whom the child is to live.

"overseas child order" has the meaning given by section 70F of the Act.

[5] Regulation 55

substitute

55 Admissibility of evidence given in convention countries

In a proceeding under this Part in a court, a statement contained in a document that purports:

(a)

to set out or summarise evidence given in a proceeding in a court in a convention country and to have been signed by the person before whom the evidence was given; or

(b)

to set out or summarise evidence taken in a convention country for the purpose of a proceeding under this Part (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 a proceeding in a court in a convention country and to have been signed by a judge or other officer of the court;

is admissible as evidence of any fact stated in the document to the same extent as oral evidence of that fact is admissible in the proceeding, without proof of the signature of the person purporting to have signed it or of the official position of that person.