Commonwealth Numbered Regulations - Explanatory Statements

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FAMILY LAW (CHILD ABDUCTION CONVENTION) REGULATIONS (AMENDMENT) 1996 NO.74

STATUTORY RULES 1996 No. 74

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 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 under the Hague Convention on the Civil Aspects of International Child Abduction (the Convention).

The objects of the Convention are to locate, and secure the prompt return of, children abducted 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. On 22 April 1986, the Family Law (Child Abduction Convention) Regulations were made to give effect to the Convention for Australia.

The main purpose of the amendments is to amend provisions in the Family Law (Child Abduction Convention) Regulations consequential upon the Family Law Reform Act 1995. The Family Law Reform Act 1995 replaces the current references in the Family Law Act 1975 to custody, guardianship and access with new terminology of parental responsibility, residence and contact. The amendments alter the Abduction Regulations to make changes consequential upon these changes in terminology.

The amendments also make minor amendments to ensure the provisions of the Abduction Regulations correctly reflect the terminology used in the Convention, clarify the extent to which affidavit evidence from witnesses in Family Court abduction proceedings is subject to cross examination and permit the Family Court to direct that a report on the welfare of a child be sent to government authorities in another Convention country.

Details of amendments are contained in the attachment.

Attachment

Regulation 1 provides that the proposed Regulations commence on 11 June 1996. As the main amendments made by the proposed Regulations are consequential upon the Family Law Reform Act 1995, the proposed Regulations have the same commencement date as that Act.

Regulation 2 is formal.

Regulation 3 amends regulation 18 of the Family Law (Child Abduction Convention) Regulations. Regulation 18 implements an article of the Convention which in effect provides that the fact that a custody order is in force in Australia is not a ground for refusing to return to his or her country of habitual residence a child wrongfully removed to, or retained in, Australia. Proposed regulation 3 amends regulation 18 to provide a definition of 'custody' which covers specific issues orders and residence orders which may be made by courts under section 64B of the Family Law Act 1975 (as inserted by section 31 of the Family Law Reform Act 1995).

Regulation 4 amends regulation 19 of the Family Law (Child Abduction Convention) Regulations. Regulation 19 implements an article of the Convention which in effect provides that a court in Australia must not decide the 'custody' of a child until a decision has been made on an application for the return of the child to his or her country of habitual residence. Proposed regulation 4 amends regulation 19 to refer to the definition of 'custody' in regulation 18 (as inserted by proposed regulation 3).

Regulation 5 amends regulation 26 of the Family Law (Child Abduction Convention) Regulations to replace existing references to 'court counsellor' with references to 'family and child counsellor'. This amendment is consequential upon a change made by the Family Law Reform Act 1995 to the title of 'court counsellor´ in the Family Law Act 1975.

Regulation 5 also amends regulation 26 of the Family Law (Child Abduction Convention) Regulations to provide that the Family Court may direct that an overseas government authority be informed of material relating to the welfare of a child which appears in a report prepared for the Court by a family and child counsellor.

Regulation 6 amends regulation 29(1)(b) of the Family Law (Child Abduction Convention) Regulations. Regulation 29(1)(b) provides that in proceedings under the convention relating to the wrongful removal of a child to Australia, the affidavit evidence of a witness may be admitted in evidence by the Family Court despite his or her non attendance for cross examination before the Court. Proposed regulation 6 will amend regulation 29(1)(b) to make clear that.. this rule refers only to the affidavit evidence of a witness who resides outside Australia.

Regulation 6 also amends regulation 29 of the Family Law (Child Abduction Convention) Regulations to provide a definition of 'custody' for the purpose of regulation 29 which covers specific issues orders and residence orders which may be made by courts under section 64B of the Family Law Act 1975 (as inserted by section 31 of the Family Law Reform Act 1995).

Regulation 7 amends the forms of application in Schedule 1 of the Family Law (Child Abduction Convention) Regulations for the purpose of ensuring consistency with the Convention. The Convention refers to 'rights of custody' and 'rights of access' (rather than 'custody' or 'access') and to a person applying to 'secure rights of access' (rather than 'pursuing a claim to access').