Family Law (Child Abduction Convention) Regulations 1986

The Regulations primarily affect four classes of actors.

First, parents, institutions or other bodies holding rights of custody or rights of access in relation to a child under 16. An Australian rights-of-custody holder whose child has been removed to or retained in a convention country may invoke regulation 11. Conversely, a foreign rights holder may trigger the incoming mechanism under regulation 13 and become an Article 3 applicant under regulation 14(1)(b). Rights of custody are broadly defined in regulation 4 to include rights arising by operation of law, judicial decision or enforceable agreement, and expressly encompass the right to determine the child’s place of residence. Rights of access are defined inclusively in regulation 2 to cover limited-period removal from habitual residence.

Second, the Commonwealth Central Authority (the Secretary of the Attorney-General’s Department) and State Central Authorities appointed under regulation 8. These bodies bear the Article 7 Central Authority functions. Regulation 5 imposes on the Commonwealth Central Authority a suite of coordination, advisory and welfare-protection duties, a “as quickly as a proper consideration allows” expedition obligation, and immunity from adverse costs orders (regulation 7). State Central Authorities exercise equivalent powers subject to any limitations in their instrument of appointment (regulation 9). In practice the Commonwealth Central Authority frequently transfers matters to State Central Authorities under regulations 13(4)(a) and 24(4)(a).

Third, Australian courts—principally the Federal Circuit and Family Court of Australia (Division 1) and (Division 2), but also State and Territory Supreme Courts exercising family law jurisdiction. The instrument repeatedly uses the defined term “court” (regulation 2) and imposes tight timelines: priority hearing (regulation 15(2)), a 42-day benchmark with mandatory written reasons for delay (regulation 15(4)), and the substantive decision rules in regulation 16. Courts must also apply the evidentiary relaxations in regulation 29 when the applicant is a Central Authority, including admissibility of foreign affidavits without cross-examination and judicial notice of foreign law and decisions.

Fourth, indirectly, the child. Although the child is not a party, the Regulations repeatedly reference the child’s welfare (regulation 5(1)(c)), grave risk (regulation 16(3)(b)), objection (regulation 16(3)(c)), and social background information supplied by the habitual-residence Central Authority (regulation 16(4)). Family consultants may be directed to report under regulation 26, and independent children’s lawyers may appear and propose protective conditions (regulation 16(6)).

The instrument does not affect persons outside convention countries, nor does it apply to children 16 or older. It also expressly preserves parallel rights: regulation 6 makes clear that a rights-of-custody holder may still apply directly to a court under Part VII of the Family Law Act, and courts retain power to make welfare orders at any time.

Central Authorities owe duties of expedition and cooperation. Regulation 5(3) requires the Commonwealth Central Authority to perform functions “as quickly as a proper consideration of each matter … allows”. Regulation 13(1) uses mandatory language (“must take action”) once a compliant incoming request is received. Regulation 11(4) likewise obliges compliant transmission of outgoing requests. Both Central Authorities enjoy costs immunity (regulation 7) and cannot be required to fund travel or other arrangements (regulation 20(3) and 25A(4)).

Courts possess both mandatory and discretionary powers. The obligation to order return in regulation 16(1) and (2) is expressed in imperative terms (“the court must … make the order”) subject only to the discretionary refusals in subregulation (3). Regulation 15(1) permits a wide suite of ancillary orders—including passport surrender, location orders, recovery warrants under regulation 31, and protective conditions under regulation 15(1)(c)—provided the court considers them “appropriate to give effect to the Convention”. Regulation 15(5)–(7) codifies a structured approach to risk-mitigation conditions, directing the court to consider practicality, proportionality, non-usurpation and enforceability.

Applicants enjoy streamlined evidentiary pathways. When a responsible Central Authority is the applicant, regulation 29(2) renders the application itself, the underlying request and attached documents admissible as to the truth of their contents. Foreign affidavits are admissible without cross-examination (regulation 29(3)), and foreign orders and judgments are admissible without formal proof of signature or office (regulation 29(6)). Judicial notice may be taken of foreign law and administrative decisions (regulation 29(5)).

Respondents have the right to raise any of the four refusal grounds in regulation 16(3) and to file a Form 2A answer and cross-application (regulation 14(4)). Where grave risk is asserted, a respondent (or independent children’s lawyer) may propose conditions, triggering the court’s obligation under regulation 16(6) to consider their appropriateness. A respondent may also apply to discharge a return order under regulation 19A on consent, impracticability, exceptional circumstances or effluxion of more than one year post-order.

Children’s rights are mediated through the objection ground. Regulation 16(3)(c) (as amended in 2024) requires the court to be satisfied both that the child objects and that the child has sufficient age and maturity for the objection to be taken into account. The transitional provision in regulation 34 extends this test to certain pre-commencement proceedings.

The Regulations do not create criminal offences; enforcement is civil. The principal enforcement mechanism is the recovery warrant under regulation 31. Such a warrant, issued in Form 2C, authorises named persons (including Federal Police) to find and recover the child, enter premises or vehicles where there are serious and urgent circumstances, and deliver the child to a nominated person. It may be sought ex parte under regulation 14(2) where there is an appreciable risk of further removal.

Non-compliance with court orders made under the Regulations is enforceable through the general contempt and enforcement powers of the Federal Circuit and Family Court. Regulation 30 creates a costs-recovery right. Where a court makes an order under regulations 15, 17, 19A, 25A or 26 on a Central Authority or Article 3 application, that Authority or applicant may seek an order that the abducting or access-denying party pay necessary expenses, including location costs, legal representation, family consultant attendance and coordination expenses. Travel expenses of an Article 3 applicant are also recoverable.

Costs immunity protects Central Authorities: regulation 7 prohibits any order requiring a Central Authority to pay costs incurred in exercising its Convention functions. Regulation 21 prohibits security for costs in Convention proceedings.

Failure to file an answer within the time permitted by the applicable Rules of Court may result in the court proceeding in the respondent’s absence (see Forms 2 and 4). Delay by the court itself triggers the 42-day written-reasons mechanism in regulation 15(4), which can be used to escalate the matter administratively.

The Regulations are made under the Family Law Act 1975 (regulation 1AA) and must be read with section 111B, which expressly authorises the Governor-General to make regulations for the Convention. Section 111B(4) extends the meaning of “rights of custody” for Convention purposes, a definition mirrored and expanded in regulation 4.

Part VII of the Family Law Act (children) continues to operate. Regulation 6(2) expressly preserves the court’s power to make welfare orders under Part VII or any other Australian law at any time. Regulation 19, however, prohibits the making of substantive custody orders (within the expanded meaning in regulation 18(2)) once a return application is on foot, except by way of interim order. This prevents the Australian court from determining the merits of custody while a return application is pending, consistent with Article 16 of the Convention.

The Regulations interact with the Family Law Amendment (Child Protection Convention) Regulations and the Family Law (Child Protection Convention) Regulations 2023 through overlapping concepts of habitual residence and wrongful removal, although the two instruments serve different treaties.

State and Territory child-protection legislation is relevant to the grave-risk analysis. Note 1 to regulation 16(3) cross-references the Family Law Act’s definition of family violence in section 4AB, signalling that exposure to family violence may constitute grave risk even if the violence has not yet occurred. Courts routinely receive evidence from State child-welfare agencies when assessing intolerable-situation claims.

The evidence rules in regulation 29 supplement the Evidence Act 1995 (Cth). The admissibility of foreign documents without formal proof overrides ordinary hearsay and authentication requirements. Judicial notice of foreign law under regulation 29(5) parallels but is narrower than section 175 of the Evidence Act.

Transitional provisions in Part 6 interact with the Family Law Amendment Act 2023. Regulation 34 applies the 2024 objection amendments to proceedings instituted on or after the commencement of Schedule 4 to that Act and to earlier proceedings not yet finally determined where a final hearing had not commenced.

Three sets of amendments are material.

The Family Law Legislation Amendment (Miscellaneous Measures) Regulations 2019 updated forms, terminology (reflecting the creation of the Federal Circuit and Family Court of Australia) and minor procedural matters. Regulation 32 preserves the pre-2019 versions of Forms 1 and 3 until new Ministerial approvals are given.

The Family Law (Child Abduction Convention) Amendment (Family Violence) Regulations 2022 responded to recommendations of the Joint Select Committee on Australia’s Family Law System and concerns that the previous grave-risk test had been interpreted too narrowly. The amending regulations inserted Note 1 to regulation 16(3), expressly permitting the court to consider risk of family violence “regardless of whether the court is satisfied that family violence has occurred, will occur or is likely to occur”. They also added regulation 16(5)–(8), which require affirmative consideration of protective conditions and other risk-reduction measures. The saving provision in regulation 33 ensures that applications filed before commencement continue under the pre-2022 law.

The Family Law (Child Abduction Convention) Amendment (Child’s Objection) Regulations 2024 refined regulation 16(3)(c) to require both an objection and sufficient maturity, aligning the test more closely with Article 13 of the Convention and with the approach taken in leading appellate authority. Regulation 34 applies the new test to new proceedings and to pending proceedings that have not yet commenced a final hearing. The explanatory statement emphasised the need to give proper weight to children’s views without converting summary return proceedings into full merits hearings.

These changes reflect a gradual legislative recognition that strict application of the Convention’s return presumption can, in some cases, expose children to unacceptable harm, while still preserving the Convention’s core objective of comity and prompt return.

Australian case law has centred on three recurring issues.

First, the meaning of “grave risk” and “intolerable situation”. Pre-2022 authorities such as DP v Commonwealth Central Authority (2001) 206 CLR 401 emphasised that the exception must not become a merits review. The 2022 amendments and the explicit family-violence Note have led to greater readiness to receive expert evidence on trauma and to fashion protective conditions. Courts have nevertheless continued to insist that the risk must be “grave” and that the intolerable situation must arise from the return itself rather than from the underlying custody dispute.

Second, the child’s objection. The pre-2024 formulation in regulation 16(3)(c) required only that the child object and have attained an appropriate age and degree of maturity. Appellate courts had developed a two-stage test: (i) does the child in fact object, and (ii) is the objection of sufficient strength and maturity to justify refusal. The 2024 amendment codifies that approach. Controversy remains about how to ascertain an objection without cross-examining the child, the weight to be given to views influenced by the abducting parent, and whether an objection to return to the country is distinguishable from an objection to living with the left-behind parent.

Third, the one-year settlement defence in regulation 16(2). Courts have grappled with the meaning of “settled in his or her new environment”, examining schooling, language acquisition, family support networks and emotional attachment. There is ongoing debate whether settlement must be assessed at the date of hearing or at the expiry of the one-year period.

Procedural controversies include the use of regulation 15(1)(c) conditions. Some judges have expressed concern that imposing detailed conditions risks “usurping the functions of the courts … in the child’s state of habitual residence” (see regulation 15(6)(c)), while others have crafted extensive undertakings that the left-behind parent must give to foreign courts. The regulation 15(6) checklist was inserted to discipline that discretion.

Costs recovery under regulation 30 has produced satellite litigation about whether legal costs incurred before the Australian proceedings are “necessary expenses” and whether a Central Authority can recover its own staff costs.

Most practitioners do not realise that the one-year period in regulation 16(1) runs from the date of wrongful removal or retention, not from the date the left-behind parent first learns of the child’s whereabouts. A parent who spends years searching may still face a “settled” defence under regulation 16(2) even though they acted diligently.

Another trap is the interaction between regulation 16(3)(b) grave risk and the 2022 family-violence Note. The Note permits the court to consider risk “regardless of whether the court is satisfied that family violence has occurred, will occur or is likely to occur”. This appears to lower the evidentiary threshold, yet appellate courts continue to require cogent evidence that the risk is “grave”. The distinction between a generalised risk of family violence and a grave risk upon return is frequently litigated but rarely articulated in published reasons.

Central Authority costs immunity under regulation 7 is absolute in respect of Convention functions, yet many self-represented respondents assume they can obtain costs against the Authority if they successfully resist return. The immunity extends to both Commonwealth and State Central Authorities.

Regulation 19A discharge applications are often overlooked. Even after a return order is made and appeal rights exhausted, a respondent may apply to discharge on the basis of “exceptional circumstances” or after 12 months. The court must have regard to section 111CE of the Act if the child’s original country is also a Convention country under the Child Protection Convention; many practitioners miss this cross-reference.

The evidentiary shortcut in regulation 29 applies only when the applicant is a responsible Central Authority. A private Article 3 applicant cannot rely on the same presumptions of admissibility, creating an uneven playing field that is rarely explained to clients.

Finally, the “habitual residence” inquiry remains a question of fact determined at the date of removal (regulation 16(1A)(b)). Parties frequently expend enormous resources on expert evidence about foreign custody law without first locking in habitual residence. Regulation 4(1)(a) makes clear that rights of custody are assessed under the law of the habitual-residence country immediately before removal; an error on that anterior question infects the entire wrongful-removal analysis.

For Central Authorities, compliance begins with rigorous intake checking. Every incoming request must be assessed against the Convention and regulation 13(1)(b). Non-compliant requests must be refused in writing with reasons (regulation 13(3)). Where action is taken, the Authority must consider the full menu in regulation 13(4)—transfer, amicable resolution, voluntary return, or court proceedings—and must coordinate welfare arrangements under regulation 5(1)(c) upon the child’s return.

For legal practitioners acting for applicants, the key is speed. An application should be filed in the appropriate registry of the Federal Circuit and Family Court using Form 2 (or Form 4 for access). Supporting material should include the foreign request, any foreign orders, evidence of rights of custody under the habitual-residence law, and a concise affidavit. Where there is risk of further removal, an ex-parte warrant or passport order under regulation 14(2) should be sought immediately. Practitioners should anticipate the four refusal grounds and prepare rebuttal evidence, particularly on actual exercise of rights and the absence of acquiescence.

For respondents, early identification of a viable defence is critical. Evidence going to consent or acquiescence must be contemporaneous; subsequent regret carries little weight. Grave-risk cases require expert psychological or psychiatric evidence directed to the consequences of return, not merely criticism of the left-behind parent. Child-objection cases require a family consultant report under regulation 26; instructing an independent children’s lawyer early can assist in formulating protective conditions that may avoid outright refusal.

All parties must be alive to the 42-day benchmark in regulation 15(4). If the matter is not determined within that period, a written request for reasons should be made to the relevant Registrar; this can be used to support applications for expedition or, in extreme cases, to seek mandamus.

When drafting protective conditions under regulation 15(1)(c), practitioners should address each of the four matters in regulation 15(6): practicality, proportionality, non-usurpation and enforceability. Conditions that require the left-behind parent to commence foreign proceedings or to provide mirror orders in the habitual-residence jurisdiction are more likely to survive scrutiny than open-ended undertakings.

Finally, compliance includes costs awareness. An Article 3 applicant who succeeds may seek full recovery of necessary expenses under regulation 30(4). A Central Authority that succeeds will almost invariably seek its location, legal and coordination costs. Conversely, a successful respondent cannot recover costs from a Central Authority.

By treating the Regulations as a summary-return code rather than a custody trial, practitioners best serve their clients and fulfil Australia’s Convention obligations.