Family Law (Child Abduction Convention) Regulations 1986

Part 1—Preliminary

1 Name of Regulations

These Regulations are the Family Law (Child Abduction Convention) Regulations 1986.

1AA Authority

These Regulations are made under the Family Law Act 1975.

1A Purpose

(1) The purpose of these Regulations is to give effect to section 111B of the Act. (2) These Regulations are intended to be construed: (a) having regard to the principles and objects mentioned in the preamble to and Article 1 of the Convention; and (b) recognising, in accordance with the Convention, that the appropriate forum for resolving disputes relating to a child’s care, welfare and development is ordinarily the child’s country of habitual residence; and (c) recognising that the effective implementation of the Convention depends on the reciprocity and mutual respect between judicial or administrative authorities (as the case may be) of convention countries.

2 Definitions

Note: A number of expressions used in these Regulations are defined in the Act, including the following:

(a) applicable Rules of Court;
(b) court.

(1) In these Regulations:

Act means the Family Law Act 1975.

Article 3 applicant means a person, institution or other body that has made an application under paragraph 14(1)(b) or subregulation 14(2).

Central Authority has the meaning it has in the Convention.

child means a person who has not attained the age of 16 years.

Commonwealth Central Authority means the Secretary of the Attorney‑General’s Department.

Convention means the Convention on the Civil Aspects of International Child Abduction referred to in section 111B of the Act, a copy of the English text of which is set out in Schedule 1.

convention country means any country in respect of which the Convention has entered into force with Australia.

Note: A list of countries in respect of which the Convention has entered into force with Australia could in 2019 be viewed on the Department’s website (https://www.ag.gov.au).

filed has the same meaning as in the applicable Rules of Court.

relevant Registrar of a court means:

(a) in relation to the Federal Circuit and Family Court of Australia (Division 1)—the following:
(i) the Chief Executive Officer and Principal Registrar (within the meaning of the Federal Circuit and Family Court of Australia Act 2021);
(ii) a Senior Registrar or Registrar of that court; or
(b) in relation to the Federal Circuit and Family Court of Australia (Division 2)—the following:
(i) the Chief Executive Officer and Principal Registrar (within the meaning of the Federal Circuit and Family Court of Australia Act 2021);
(ii) a Senior Registrar or Registrar of that court; or
(c) in relation to any other court—the principal officer of the court or any other appropriate officer or staff member of the court.

request means a request made to a responsible Central Authority for the purposes of Article 8 or 21 of the Convention.

responsible Central Authority, in relation to action to be taken in a State or Territory, means the Commonwealth Central Authority or the State Central Authority of that State or Territory, as the case requires.

return order means an order under Part 3 for the return, under the Convention, of a child who has been removed to, or retained in, Australia.

rights of access include the right to take a child for a limited period of time to a place other than the child’s habitual residence.

rights of custody has the meaning given in regulation 4.

State Central Authority means a person appointed under subregulation 8(1) to be the Central Authority of a State or Territory.

(1A) A reference in these Regulations to a form by number is a reference to the form so numbered in Schedule 3. (1B) Unless the contrary intention appears, an expression that is used in these Regulations and in the Convention has the same meaning in these regulations as in the Convention. (1C) A reference in these Regulations to a child who is removed: (a) from Australia to a convention country; or (b) from a convention country to another convention country or to Australia; includes a reference to the removal of the child to the convention country concerned or to Australia, as the case may be, whether or not the child is first removed to another country. (2) The removal or retention of a child is wrongful in the circumstances mentioned in Article 3 of the Convention.

4 Meaning of rights of custody

(1) For these Regulations, a person, institution or other body has rights of custody in relation to a child if: (a) the child was habitually resident in Australia or in a convention country immediately before his or her removal or retention; and (b) rights of custody in relation to the child are attributed to the person, institution or other body, either jointly or alone, under a law in force in Australia or in the convention country in which the child habitually resided immediately before his or her removal or retention. (2) For the purposes of subregulation (1), rights of custody include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child. (3) For the purposes of this regulation, rights of custody may arise: (a) by operation of law; or (b) by reason of a judicial or administrative decision; or (c) by reason of an agreement having legal effect under a law in force in Australia or a convention country.

5 Commonwealth Central Authority—duties, powers and functions

(1) In addition to the other functions conferred on the Commonwealth Central Authority by these Regulations, the functions of the Commonwealth Central Authority are: (a) to do, or co‑ordinate the doing of, anything that is necessary to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under the Convention; and (b) to advise the Attorney‑General, either on the initiative of the Commonwealth Central Authority or on a request made to that Authority by the Attorney‑General, on all matters that concern, or arise out of performing, those obligations, including any need for additional legislation required for performing those obligations; and (c) to do everything that is necessary or appropriate to give effect to the Convention in relation to the welfare of a child on the return of the child to Australia. (2) The Commonwealth Central Authority has all the duties, may exercise all the powers, and shall perform all the functions, that a Central Authority has under the Convention. (3) The Commonwealth Central Authority must perform its functions and exercise its powers as quickly as a proper consideration of each matter relating to the performance of a function or the exercise of a power allows.

6 These Regulations do not affect other powers of, or rights of application to, a court

(1) These Regulations are not intended to prevent a person, institution or other body that has rights of custody in relation to a child for the purposes of the Convention from applying to a court if the child is removed to, or retained in, Australia in breach of those rights. (2) These Regulations are not to be taken as preventing a court from making an order at any time under Part VII of the Act or under any other law in force in Australia for the return of a child.

7 Immunity of Commonwealth Central Authority etc in respect of orders to pay costs

A court must not make an order that requires the Commonwealth Central Authority or a State Central Authority to pay costs in relation to his or her exercising the powers, or performing the functions, of the Commonwealth Central Authority.

8 State Central Authority—appointment

(1) The Attorney‑General may appoint a person to be the Central Authority of a State or Territory for the purposes of these Regulations. (2) The power to appoint a person under subregulation (1) includes a power to appoint any person from time to time holding, occupying or performing the duties of a specified office or position of the Commonwealth or of a State or Territory. (3) An appointment of a person under subregulation (1) may be expressed to have effect only in such circumstances as are specified in the instrument of appointment.

9 State Central Authority—duties, powers and functions

Subject to subregulation 8(3), a State Central Authority has all the duties, may exercise all the powers, and may perform all the functions, of the Commonwealth Central Authority.

Part 2—Requests to Central Authorities, except for access

11 Request for return of child abducted from Australia

(1) A person, institution or other body that claims under a law in force in Australia to have rights of custody in relation to a child who, in breach of those rights, has been: (a) removed from Australia to a convention country; or (b) retained in a convention country; may request a responsible Central Authority to have the claim sent to the Central Authority in the country to which the child has been removed or in which the child is retained. (2) A request must be: (a) in accordance with a form approved, in writing, by the Minister under subregulation (2A); and (b) in accordance with the Convention. (2A) The Minister may approve a form, in writing, for the purposes of paragraph (2)(a). (3) A State Central Authority that is satisfied that a request received by it complies with subregulation (2) must send the request to the Commonwealth Central Authority. (4) If the Commonwealth Central Authority is satisfied that a request received by it complies with subregulation (2), the Commonwealth Central Authority must, on behalf of the person, institution or other body, take any action required to be taken by a Central Authority under the Convention. (5) A responsible Central Authority that is satisfied that a request received by it does not comply with subregulation (2) may, by notice in writing, refuse to accept the request. (6) A notice under subregulation (5) from the Commonwealth Central Authority must: (a) be sent to the person, institution or other body that made the request; and (b) if the Commonwealth Central Authority received the request from a State Central Authority—be sent to the State Central Authority; and (c) include the reason for the refusal. (7) A notice under subregulation (5) from a State Central Authority must: (a) be sent to the person, institution or other body that made the request; and (b) include the reason for the refusal.

13 Request for return of child abducted to Australia

(1) The Commonwealth Central Authority must take action to secure the return of a child under the Convention if: (a) it receives a request from: (i) a person, institution or other body that claims to have rights of custody in relation to the child who, in breach of those rights, has been removed from a convention country to Australia or has been retained in Australia; or (ii) a Central Authority on behalf of a person, institution or other body mentioned in subparagraph (i); and (b) it is satisfied that the request is in accordance with the Convention. (2) The Commonwealth Central Authority may, by notice in writing, refuse to accept a request received by it if it is satisfied that the request is not in accordance with the Convention. (3) A notice under subregulation (2) must: (a) be sent to the person, institution or other body that made the request; and (b) if the Commonwealth Central Authority received the request from a Central Authority—be sent to the Central Authority; and (c) include the reason for the refusal. (4) For subregulation (1), the action taken may include any of the following: (a) transferring the request to a State Central Authority; (b) seeking an amicable resolution of the differences, in relation to the removal or retention of the child, between the person making the request for the child’s return and the person opposing the child’s return; (c) seeking the voluntary return of the child; (d) applying for an order under Part 3.

Part 3—Court applications, except for access

14 Applications to court

(1) If a child is removed from a convention country to, or retained in, Australia: (a) the responsible Central Authority may apply to the court, in accordance with Form 2, for any of the following orders: (i) a return order for the child; (ii) an order for the delivery of the passport of the child, and the passport of any other relevant person, to the responsible Central Authority, a member of the Australian Federal Police or a person specified in the order, on conditions appropriate to give effect to the Convention; (iii) an order for the issue of a warrant mentioned in regulation 31; (iv) an order directing that: (A) the child not be removed from a specified place; and (B) members of the Australian Federal Police prevent the child being removed from that place; (v) an order requiring that arrangements be made (as necessary) to place the child with an appropriate person, institution or other body to secure the welfare of the child, until a request under regulation 13 is determined; (vi) any other order that the responsible Central Authority considers appropriate to give effect to the Convention; or (b) a person, institution or other body that has rights of custody in relation to the child for the purposes of the Convention may apply to the court, in accordance with Form 2, for an order mentioned in subparagraph (a)(i), (ii), (iii), (iv) or (v). (2) If the responsible Central Authority, or a person, institution or other body that has rights of custody in relation to a child for the purposes of the Convention, has reasonable grounds to believe that there is an appreciable possibility or a threat that the child will be removed from Australia, the responsible Central Authority or person, institution or other body may: (a) apply to the court, in accordance with Form 2, for an order for the issue of a warrant mentioned in regulation 31; or (b) apply to the court for an order for the delivery of the passport of the child, and the passport of any other relevant person, to the responsible Central Authority, a member of the Australian Federal Police or a person specified in the order, on conditions appropriate to give effect to the Convention. (3) If a child is wrongfully removed from Australia to, or retained in, a convention country, the responsible Central Authority may apply to the court, in accordance with Form 2, for: (a) an order that the responsible Central Authority considers necessary or appropriate to give effect to the Convention in relation to the welfare of the child after his or her return to Australia; or (b) any other order that the responsible Central Authority considers appropriate to give effect to the Convention. (4) If a copy of an application made under subregulation (1), (2) or (3) is served on a person: (a) the person must file an answer, or an answer and a cross‑application, in accordance with Form 2A; and (b) the applicant may file a reply in accordance with Form 2B.

14A Further applications to court

(1) A responsible Central Authority or person, institution or other body that has made an application under subregulation 14(1), (2) or (3) may make a further application for an order mentioned in those subregulations. (2) An application under subregulation (1) must be in accordance with Form 2 in Schedule 2 to the Family Law Rules 2004.

15 Orders

(1) If a court is satisfied that it is desirable to do so, the court may, in relation to an application made under regulation 14: (a) make an order of a kind mentioned in that regulation; and (b) make any other order that the court considers to be appropriate to give effect to the Convention; and (c) include in an order to which paragraph (a) or (b) applies a condition that the court considers to be appropriate to give effect to the Convention. (2) A court must, so far as practicable, give to an application such priority as will ensure that the application is dealt with as quickly as a proper consideration of each matter relating to the application allows. (4) If an application made under regulation 14 is not determined by a court within the period of 42 days commencing on the day on which the application is filed: (a) the responsible Central Authority or Article 3 applicant who made the application may ask the relevant Registrar of the court to state in writing the reasons for the application not having been determined within that period; and (b) as soon as practicable after being asked, the relevant Registrar must give the statement to the responsible Central Authority or Article 3 applicant. (5) To avoid doubt, a court may make an order under paragraph (1)(b), or include a condition under paragraph (1)(c) in an order under paragraph (1)(a) or (b), for the purpose of reducing a risk referred to in paragraph 16(3)(b) regardless of whether the court is satisfied that: (a) the risk will eventuate, or is likely to eventuate; or (b) the risk has eventuated in the past. (6) In considering whether to include a condition under paragraph (1)(c) in an order under paragraph (1)(a) or (b), the court may have regard to the following matters: (a) whether compliance with the proposed condition will be reasonably practicable; (b) whether the condition is proportionate; (c) whether the condition would usurp the regular functions of the courts or authorities in the child’s state of habitual residence; (d) whether the condition would be enforceable in the jurisdiction or jurisdictions in which it would apply. (7) Subregulation (6) does not limit the matters to which the court may have regard in considering whether to include a condition under paragraph (1)(c) in an order under paragraph (1)(a) or (b).

16 Obligation to make a return order

(1) If: (a) an application for a return order for a child is made; and (b) the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child’s removal or retention; and (c) the responsible Central Authority or Article 3 applicant satisfies the court that the child’s removal or retention was wrongful under subregulation (1A); the court must, subject to subregulation (3), make the order. (1A) For subregulation (1), a child’s removal to, or retention in, Australia is wrongful if: (a) the child was under 16; and (b) the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; and (c) the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and (d) the child’s removal to, or retention in, Australia is in breach of those rights of custody; and (e) at the time of the child’s removal or retention, the person, institution or other body: (i) was actually exercising the rights of custody (either jointly or alone); or (ii) would have exercised those rights if the child had not been removed or retained. (2) If: (a) an application for a return order for a child is made; and (b) the application is filed more than one year after the day on which the child was first removed to, or retained in, Australia; and (c) the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment; the court must, subject to subregulation (3), make the order. (3) A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that: (a) the person, institution or other body seeking the child’s return: (i) was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or (ii) had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or (b) there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or (c) each of the following applies: (i) the child objects to being returned; (iii) the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or (d) the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.

Note 1: In considering whether the matter mentioned in paragraph (3)(b) is established:

(a) the court may have regard to any risk that the return of the child under the Convention would result in the child being subject to, or exposed to, family violence; and
(b) the court may have regard to the extent to which the child could be protected from any such risk if the child was returned under the Convention; and
(c) the court may have regard to the matters mentioned in paragraphs (a) and (b) of this note regardless of whether the court is satisfied that family violence has occurred, will occur or is likely to occur.

Note 2: For the definition of family violence, see section 4AB of the Act.

(4) For the purposes of subregulation (3), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention. (5) The court is not precluded from making a return order for the child only because a matter mentioned in subregulation (3) is established by a person opposing return. (6) If: (a) the court is considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b); and (b) a party to the proceedings, or an independent children’s lawyer who represents the interests of the child in the proceedings, raises in the proceedings any condition that could, for the purpose of reducing a risk mentioned in paragraph (3)(b), be included under paragraph 15(1)(c): (i) in a return order for the child; or (ii) in any other order that the court proposes to make under paragraph 15(1)(b) in relation to a return order; the court must consider whether it would be appropriate to include the condition. (7) In considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b), the court may have regard to any other measures that would be reasonably likely to reduce the risk mentioned in paragraph (3)(b). (8) Subregulations (6) and (7) do not limit the matters to which the court may have regard in considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b).

17 Declaration that removal or retention was wrongful

(1) On application, a court may by order declare that: (a) the removal of a child from Australia to a convention country; or (b) the retention of a child in a convention country; was wrongful within the meaning of Article 3 of the Convention. (2) The court may ask a responsible Central Authority to arrange for the person, institution or other body making a request in relation to the return of a child under the Convention to obtain an order of a court, or a decision of a competent authority, of the country in which the child habitually resided immediately before his or her removal or retention declaring that the removal or retention was wrongful within the meaning of Article 3 of the Convention.

18 Effect of other custody orders in Australia or overseas

(1) The following rules apply to the hearing of an application made under subregulation 14(1): (a) the court must not refuse to make a return order for the child only because there is in force or enforceable in Australia an order relating to the custody of the child; (b) the court may take into account the reasons for the making of any order relating to the custody of the child; (c) an order for the return of the child does not determine the merits of any custody issue in relation to the child. (2) 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.

19 When a court not to make certain orders

If an application for a return order for a child is made, a court must not make an order, except an interim order, providing for the custody of the child, within the meaning of regulation 18, until the application is determined.

19A Discharge of return order

(1) If a court makes a return order, the responsible Central Authority, the Article 3 applicant or a respondent to the proceeding may apply to the court, in accordance with Form 2D, for the discharge of the order. (2) The court may make an order discharging a return order, or a part of a return order, only if it is satisfied that: (a) all the parties consent to the return order being discharged; or (b) since the return order was made, circumstances have arisen that make it impracticable for the order to be carried out; or (c) exceptional circumstances exist that justify the return order being discharged; or (d) the day on which the application for the discharge of the return order was made is more than 1 year after the return order was made or any appeal in relation to the return order was determined. (3) In considering whether to make an order discharging a return order, the court must have regard to section 111CE of the Act if the convention country from which the child was removed is also a Convention country within the meaning of subsection 111CA(1) of the Act.

20 Arrangements for return of child

(1) If the responsible Central Authority applies to the court for a return order for a child, and the order is made, the responsible Central Authority must coordinate the making of the arrangements that are necessary to give effect to the order. (2) If: (a) a return order for a child is made; and (b) within 7 days after the order is made, the responsible Central Authority or Article 3 applicant has not been notified that the order has been stayed; the child must be returned in accordance with the order. (3) Subregulation (1) does not require the Commonwealth Central Authority or the State Central Authority to make or pay for the arrangements that are necessary to give effect to the order.

21 Security for costs etc

A responsible Central Authority or a court must not require any security or bond for the payment of costs or expenses of, or incidental to, proceedings falling within the scope of the Convention.

Part 4—Requests to Central Authorities and court applications for access

23 Request for access to child in convention country

(1) A person who claims under a law in force in Australia to have rights of access to a child in a convention country may request a responsible Central Authority to have arrangements made for establishing, organising or securing the effective exercise of those rights in that convention country.

Note: For persons who should be regarded as having a right of access to a child, see paragraph 111B(4)(d) of the Act.

(2) A request must be: (a) in accordance with a form approved, in writing, by the Minister under subregulation (2A); and (b) in accordance with the Convention. (2A) The Minister may approve a form, in writing, for the purposes of paragraph (2)(a). (3) A State Central Authority that is satisfied that a request received by it complies with subregulation (2) must send the request to the Commonwealth Central Authority. (4) If the Commonwealth Central Authority is satisfied that a request received by it complies with subregulation (2), it must take any action required to be taken by a Central Authority under the Convention. (5) A responsible Central Authority that is satisfied that a request received by it does not comply with subregulation (2) may, by notice in writing, refuse to accept the request. (6) A notice under subregulation (5) from the Commonwealth Central Authority must: (a) be sent to the person who made the request; and (b) if the Commonwealth Central Authority received the request from a State Central Authority—be sent to the State Central Authority; and (c) include the reason for the refusal. (7) A notice under subregulation (5) from a State Central Authority must: (a) be sent to the person who made the request; and (b) include the reason for the refusal.

24 Request for access to child in Australia

(1) The Commonwealth Central Authority must take action to establish, organise or secure the effective exercise of rights of access to a child in Australia if: (a) it receives a request from a Central Authority on behalf of a person who claims: (i) to have rights of access to the child under a law in force in a convention country; and (ii) that those rights have been breached; and (b) it is satisfied that the request is in accordance with the Convention. (2) The Commonwealth Central Authority may, by notice in writing, refuse to accept a request received by it if it is satisfied that the request is not in accordance with the Convention. (3) A notice under subregulation (2) must: (a) be sent to the Central Authority that sent the request; and (b) include the reason for the refusal. (4) For subregulation (1), the action taken may include any of the following: (a) transferring the request to a State Central Authority; (b) applying to a court under regulation 25 for an order that is necessary or appropriate to establish, organise or secure the effective exercise of the rights of access to which the request relates; (c) seeking an amicable resolution in relation to the rights of access to the child.

25 Application for access to child in Australia

(1) The responsible Central Authority may apply to the court, in accordance with Form 4, for any of the following orders: (a) an order specifying with whom a child is to spend time or communicate; (b) an order for the issue of a warrant mentioned in regulation 31; (c) any other order that the responsible Central Authority considers appropriate to give effect to the Convention. (2) If a copy of an application made under subregulation (1) is served on a person: (a) the person must file an answer, or an answer and a cross‑application, in accordance with Form 4A; and (b) the responsible Central Authority may file a reply in accordance with Form 4B.

25A Orders

(1) If a court is satisfied that it is desirable to do so, the court may, in relation to an application made under subregulation 25(1): (a) make an order of a kind mentioned in that regulation; and (b) make any other order that the court considers to be appropriate to give effect to the Convention; and (c) include in an order to which paragraph (a) or (b) applies a condition that the court considers to be appropriate to give effect to the Convention. (2) In determining an application made under subregulation 25(1) seeking an order of the kind mentioned in paragraph 25(1)(a), the court must have regard to the matters set out in section 111CW of the Act if the convention country under the laws of which the person mentioned in paragraph 24(1)(a) claims to have access rights to the child is also a Convention country within the meaning of subsection 111CA(1) of the Act. (3) The court may make an order under subregulation (1) regardless of: (a) whether an order or determination (however described) has been made under a law in force in another convention country about rights of access to the child concerned; or (b) if the child was removed to Australia—when that happened; or (c) whether the child has been wrongfully removed to, or retained in, Australia. (4) If the responsible Central Authority applies to the court for an order under subregulation (1), and the order is made, the Commonwealth Central Authority or the State Central Authority is not required to make or pay for the arrangements that are necessary to give effect to the order.

Part 5—General

26 Reports by family consultants

(1) In proceedings under these Regulations in a court, the court may: (a) direct a family consultant 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 family consultant may include in a report, in addition to the matters required to be included in the report, any other matter that relates to the care, welfare or development 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 family consultant 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 family consultant must report the failure to the court. (5) If, under subregulation (4), a family consultant 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. (7) The court may direct the Commonwealth Central Authority or a State Central Authority to inform a Central Authority in a convention country about a matter that: (a) relates to the welfare of the child; and (b) under subregulation (2)—is included in a report.

27 Service of notice of certain applications

(1) Subject to subregulation (2), notice of an application under regulation 14, 19A or 25 that includes a copy of the application must be served by the applicant in accordance with the applicable Rules of Court: (a) for an application under regulation 14—on the person whom the applicant claims has wrongfully removed or retained the child who is the subject of the application; and (b) for an application under regulation 19A—on any other party to the proceeding for return of the child; and (c) for an application under regulation 25—on the person, institution or other body in possession of the child who is the subject of the application. (2) In accordance with the applicable 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.

28 Change of venue

(1) This regulation applies if: (a) an application (the original application) is made to a court in a State or Territory (the first jurisdiction) under regulation 14, 19A or 25; and (b) the child who is the subject of the original application is located in another State or Territory (the second jurisdiction) before the application is determined. (1A) The Central Authority in the second jurisdiction may make a corresponding application (a later application) to another registry of the court, or to another court, in the second jurisdiction. (2) If a later application is made, the applicant for the later application must: (a) refer in the later application to the original application; and (b) as soon as practicable, inform the relevant Registrar of the court in which the original application was filed, in writing, of the later application. (2A) As soon as practicable after receiving information under paragraph (2)(b), the relevant Registrar of the court in which the original application was filed must transfer all records and other documents filed in the court relating to the original application to the relevant Registrar of the court in which the 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 (3), 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.

29 Evidentiary provisions

(1) This regulation applies in a proceeding in a court under regulation 14, 19A or 25 in which the applicant is a responsible Central Authority. (2) The application under regulation 14, 19A or 25, or a request under regulation 13, 24 or 25 relating to that application, or any document attached to or given in support of that application or request, is admissible as evidence of the facts stated in that application, request or document. (3) An affidavit of a witness who resides outside Australia that is filed in the proceeding is admissible as evidence even if the witness does not attend the proceeding for cross‑examination. (4) A statement contained in a document that claims: (a) to set out or summarise evidence given in a proceeding 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; or (b) to set out or summarise evidence taken in a convention country for the purpose of a proceeding 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 a proceeding 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, an 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 that person’s signature or official position. (5) 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. (6) A document that claims: (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, an officer of the court or that authority; is admissible as evidence of that order or decision without proof of that person’s signature or official position. (7) 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.

30 Costs of applications

(1) This regulation applies if: (a) either: (i) a responsible Central Authority has applied to the court for an order in relation to a child under Part 3 or 4; or (ii) an Article 3 applicant has applied to the court for an order in relation to a child under Part 3; and (b) the court makes an order under regulation 15, 17, 19A, 25A or 26. (2) The responsible Central Authority may apply to the court for an order that the person who removed or retained the child, or who prevented the exercise of rights of access to the child, must pay to the responsible Central Authority the costs of the application mentioned in subregulation (3). (3) For subregulation (2), the costs are the necessary expenses incurred by the responsible Central Authority, including the following: (a) costs incurred in locating the child; (b) costs of legal representation; (c) costs incurred in relation to the attendance by the child or an interested party at a family consultant for the preparation of a report by that consultant; (d) costs incurred in coordinating the making of arrangements for the return of the child. (4) The Article 3 applicant may apply to the court for an order that the person who removed or retained the child, or who prevented the exercise of rights of access to the child, must pay to the Article 3 applicant the costs of the application mentioned in subregulation (5). (5) For subregulation (4), the costs are the necessary expenses incurred by the Article 3 applicant, including: (a) travelling expenses; and (b) the costs mentioned in paragraphs (3)(a) to (c).

31 Warrants

For subparagraph 14(1)(a)(iii) and paragraphs 14(2)(a) and 25(1)(b), a warrant: (a) authorises a person named or described in the warrant, with such assistance as is necessary and reasonable and, if necessary and reasonable, by force: (i) to find and recover the child; and (ii) if the person reasonably believes that the child is in, or on, a vehicle, vessel, aircraft or premises and the circumstances are so serious and urgent that the entry and search of the vehicle, vessel, aircraft or premises is justified: (A) to stop, enter and search the vehicle, vessel or aircraft; or (B) to enter and search the premises; and (iii) to deliver the child to the person named in the warrant; and (b) must be in accordance with Form 2C.

Part 1—Preliminary

1 Name of Regulations

These Regulations are the Family Law (Child Abduction Convention) Regulations 1986.

1AA Authority

These Regulations are made under the Family Law Act 1975.

1A Purpose

(1) The purpose of these Regulations is to give effect to section 111B of the Act. (2) These Regulations are intended to be construed: (a) having regard to the principles and objects mentioned in the preamble to and Article 1 of the Convention; and (b) recognising, in accordance with the Convention, that the appropriate forum for resolving disputes relating to a child’s care, welfare and development is ordinarily the child’s country of habitual residence; and (c) recognising that the effective implementation of the Convention depends on the reciprocity and mutual respect between judicial or administrative authorities (as the case may be) of convention countries.

2 Definitions

Note: A number of expressions used in these Regulations are defined in the Act, including the following:

(a) applicable Rules of Court;
(b) court.

(1) In these Regulations:

Act means the Family Law Act 1975.

Article 3 applicant means a person, institution or other body that has made an application under paragraph 14(1)(b) or subregulation 14(2).

Central Authority has the meaning it has in the Convention.

child means a person who has not attained the age of 16 years.

Commonwealth Central Authority means the Secretary of the Attorney‑General’s Department.

Convention means the Convention on the Civil Aspects of International Child Abduction referred to in section 111B of the Act, a copy of the English text of which is set out in Schedule 1.

convention country means any country in respect of which the Convention has entered into force with Australia.

Note: A list of countries in respect of which the Convention has entered into force with Australia could in 2019 be viewed on the Department’s website (https://www.ag.gov.au).

filed has the same meaning as in the applicable Rules of Court.

relevant Registrar of a court means:

(a) in relation to the Federal Circuit and Family Court of Australia (Division 1)—the following:
(i) the Chief Executive Officer and Principal Registrar (within the meaning of the Federal Circuit and Family Court of Australia Act 2021);
(ii) a Senior Registrar or Registrar of that court; or
(b) in relation to the Federal Circuit and Family Court of Australia (Division 2)—the following:
(i) the Chief Executive Officer and Principal Registrar (within the meaning of the Federal Circuit and Family Court of Australia Act 2021);
(ii) a Senior Registrar or Registrar of that court; or
(c) in relation to any other court—the principal officer of the court or any other appropriate officer or staff member of the court.

request means a request made to a responsible Central Authority for the purposes of Article 8 or 21 of the Convention.

responsible Central Authority, in relation to action to be taken in a State or Territory, means the Commonwealth Central Authority or the State Central Authority of that State or Territory, as the case requires.

return order means an order under Part 3 for the return, under the Convention, of a child who has been removed to, or retained in, Australia.

rights of access include the right to take a child for a limited period of time to a place other than the child’s habitual residence.

rights of custody has the meaning given in regulation 4.

State Central Authority means a person appointed under subregulation 8(1) to be the Central Authority of a State or Territory.

(1A) A reference in these Regulations to a form by number is a reference to the form so numbered in Schedule 3. (1B) Unless the contrary intention appears, an expression that is used in these Regulations and in the Convention has the same meaning in these regulations as in the Convention. (1C) A reference in these Regulations to a child who is removed: (a) from Australia to a convention country; or (b) from a convention country to another convention country or to Australia; includes a reference to the removal of the child to the convention country concerned or to Australia, as the case may be, whether or not the child is first removed to another country. (2) The removal or retention of a child is wrongful in the circumstances mentioned in Article 3 of the Convention.

4 Meaning of rights of custody

(1) For these Regulations, a person, institution or other body has rights of custody in relation to a child if: (a) the child was habitually resident in Australia or in a convention country immediately before his or her removal or retention; and (b) rights of custody in relation to the child are attributed to the person, institution or other body, either jointly or alone, under a law in force in Australia or in the convention country in which the child habitually resided immediately before his or her removal or retention. (2) For the purposes of subregulation (1), rights of custody include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child. (3) For the purposes of this regulation, rights of custody may arise: (a) by operation of law; or (b) by reason of a judicial or administrative decision; or (c) by reason of an agreement having legal effect under a law in force in Australia or a convention country.

5 Commonwealth Central Authority—duties, powers and functions

(1) In addition to the other functions conferred on the Commonwealth Central Authority by these Regulations, the functions of the Commonwealth Central Authority are: (a) to do, or co‑ordinate the doing of, anything that is necessary to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under the Convention; and (b) to advise the Attorney‑General, either on the initiative of the Commonwealth Central Authority or on a request made to that Authority by the Attorney‑General, on all matters that concern, or arise out of performing, those obligations, including any need for additional legislation required for performing those obligations; and (c) to do everything that is necessary or appropriate to give effect to the Convention in relation to the welfare of a child on the return of the child to Australia. (2) The Commonwealth Central Authority has all the duties, may exercise all the powers, and shall perform all the functions, that a Central Authority has under the Convention. (3) The Commonwealth Central Authority must perform its functions and exercise its powers as quickly as a proper consideration of each matter relating to the performance of a function or the exercise of a power allows.

6 These Regulations do not affect other powers of, or rights of application to, a court

(1) These Regulations are not intended to prevent a person, institution or other body that has rights of custody in relation to a child for the purposes of the Convention from applying to a court if the child is removed to, or retained in, Australia in breach of those rights. (2) These Regulations are not to be taken as preventing a court from making an order at any time under Part VII of the Act or under any other law in force in Australia for the return of a child.

7 Immunity of Commonwealth Central Authority etc in respect of orders to pay costs

A court must not make an order that requires the Commonwealth Central Authority or a State Central Authority to pay costs in relation to his or her exercising the powers, or performing the functions, of the Commonwealth Central Authority.

8 State Central Authority—appointment

(1) The Attorney‑General may appoint a person to be the Central Authority of a State or Territory for the purposes of these Regulations. (2) The power to appoint a person under subregulation (1) includes a power to appoint any person from time to time holding, occupying or performing the duties of a specified office or position of the Commonwealth or of a State or Territory. (3) An appointment of a person under subregulation (1) may be expressed to have effect only in such circumstances as are specified in the instrument of appointment.

9 State Central Authority—duties, powers and functions

Subject to subregulation 8(3), a State Central Authority has all the duties, may exercise all the powers, and may perform all the functions, of the Commonwealth Central Authority.

Part 2—Requests to Central Authorities, except for access

11 Request for return of child abducted from Australia

(1) A person, institution or other body that claims under a law in force in Australia to have rights of custody in relation to a child who, in breach of those rights, has been: (a) removed from Australia to a convention country; or (b) retained in a convention country; may request a responsible Central Authority to have the claim sent to the Central Authority in the country to which the child has been removed or in which the child is retained. (2) A request must be: (a) in accordance with a form approved, in writing, by the Minister under subregulation (2A); and (b) in accordance with the Convention. (2A) The Minister may approve a form, in writing, for the purposes of paragraph (2)(a). (3) A State Central Authority that is satisfied that a request received by it complies with subregulation (2) must send the request to the Commonwealth Central Authority. (4) If the Commonwealth Central Authority is satisfied that a request received by it complies with subregulation (2), the Commonwealth Central Authority must, on behalf of the person, institution or other body, take any action required to be taken by a Central Authority under the Convention. (5) A responsible Central Authority that is satisfied that a request received by it does not comply with subregulation (2) may, by notice in writing, refuse to accept the request. (6) A notice under subregulation (5) from the Commonwealth Central Authority must: (a) be sent to the person, institution or other body that made the request; and (b) if the Commonwealth Central Authority received the request from a State Central Authority—be sent to the State Central Authority; and (c) include the reason for the refusal. (7) A notice under subregulation (5) from a State Central Authority must: (a) be sent to the person, institution or other body that made the request; and (b) include the reason for the refusal.

13 Request for return of child abducted to Australia

(1) The Commonwealth Central Authority must take action to secure the return of a child under the Convention if: (a) it receives a request from: (i) a person, institution or other body that claims to have rights of custody in relation to the child who, in breach of those rights, has been removed from a convention country to Australia or has been retained in Australia; or (ii) a Central Authority on behalf of a person, institution or other body mentioned in subparagraph (i); and (b) it is satisfied that the request is in accordance with the Convention. (2) The Commonwealth Central Authority may, by notice in writing, refuse to accept a request received by it if it is satisfied that the request is not in accordance with the Convention. (3) A notice under subregulation (2) must: (a) be sent to the person, institution or other body that made the request; and (b) if the Commonwealth Central Authority received the request from a Central Authority—be sent to the Central Authority; and (c) include the reason for the refusal. (4) For subregulation (1), the action taken may include any of the following: (a) transferring the request to a State Central Authority; (b) seeking an amicable resolution of the differences, in relation to the removal or retention of the child, between the person making the request for the child’s return and the person opposing the child’s return; (c) seeking the voluntary return of the child; (d) applying for an order under Part 3.

Part 3—Court applications, except for access

14 Applications to court

(1) If a child is removed from a convention country to, or retained in, Australia: (a) the responsible Central Authority may apply to the court, in accordance with Form 2, for any of the following orders: (i) a return order for the child; (ii) an order for the delivery of the passport of the child, and the passport of any other relevant person, to the responsible Central Authority, a member of the Australian Federal Police or a person specified in the order, on conditions appropriate to give effect to the Convention; (iii) an order for the issue of a warrant mentioned in regulation 31; (iv) an order directing that: (A) the child not be removed from a specified place; and (B) members of the Australian Federal Police prevent the child being removed from that place; (v) an order requiring that arrangements be made (as necessary) to place the child with an appropriate person, institution or other body to secure the welfare of the child, until a request under regulation 13 is determined; (vi) any other order that the responsible Central Authority considers appropriate to give effect to the Convention; or (b) a person, institution or other body that has rights of custody in relation to the child for the purposes of the Convention may apply to the court, in accordance with Form 2, for an order mentioned in subparagraph (a)(i), (ii), (iii), (iv) or (v). (2) If the responsible Central Authority, or a person, institution or other body that has rights of custody in relation to a child for the purposes of the Convention, has reasonable grounds to believe that there is an appreciable possibility or a threat that the child will be removed from Australia, the responsible Central Authority or person, institution or other body may: (a) apply to the court, in accordance with Form 2, for an order for the issue of a warrant mentioned in regulation 31; or (b) apply to the court for an order for the delivery of the passport of the child, and the passport of any other relevant person, to the responsible Central Authority, a member of the Australian Federal Police or a person specified in the order, on conditions appropriate to give effect to the Convention. (3) If a child is wrongfully removed from Australia to, or retained in, a convention country, the responsible Central Authority may apply to the court, in accordance with Form 2, for: (a) an order that the responsible Central Authority considers necessary or appropriate to give effect to the Convention in relation to the welfare of the child after his or her return to Australia; or (b) any other order that the responsible Central Authority considers appropriate to give effect to the Convention. (4) If a copy of an application made under subregulation (1), (2) or (3) is served on a person: (a) the person must file an answer, or an answer and a cross‑application, in accordance with Form 2A; and (b) the applicant may file a reply in accordance with Form 2B.

14A Further applications to court

(1) A responsible Central Authority or person, institution or other body that has made an application under subregulation 14(1), (2) or (3) may make a further application for an order mentioned in those subregulations. (2) An application under subregulation (1) must be in accordance with Form 2 in Schedule 2 to the Family Law Rules 2004.

15 Orders

(1) If a court is satisfied that it is desirable to do so, the court may, in relation to an application made under regulation 14: (a) make an order of a kind mentioned in that regulation; and (b) make any other order that the court considers to be appropriate to give effect to the Convention; and (c) include in an order to which paragraph (a) or (b) applies a condition that the court considers to be appropriate to give effect to the Convention. (2) A court must, so far as practicable, give to an application such priority as will ensure that the application is dealt with as quickly as a proper consideration of each matter relating to the application allows. (4) If an application made under regulation 14 is not determined by a court within the period of 42 days commencing on the day on which the application is filed: (a) the responsible Central Authority or Article 3 applicant who made the application may ask the relevant Registrar of the court to state in writing the reasons for the application not having been determined within that period; and (b) as soon as practicable after being asked, the relevant Registrar must give the statement to the responsible Central Authority or Article 3 applicant. (5) To avoid doubt, a court may make an order under paragraph (1)(b), or include a condition under paragraph (1)(c) in an order under paragraph (1)(a) or (b), for the purpose of reducing a risk referred to in paragraph 16(3)(b) regardless of whether the court is satisfied that: (a) the risk will eventuate, or is likely to eventuate; or (b) the risk has eventuated in the past. (6) In considering whether to include a condition under paragraph (1)(c) in an order under paragraph (1)(a) or (b), the court may have regard to the following matters: (a) whether compliance with the proposed condition will be reasonably practicable; (b) whether the condition is proportionate; (c) whether the condition would usurp the regular functions of the courts or authorities in the child’s state of habitual residence; (d) whether the condition would be enforceable in the jurisdiction or jurisdictions in which it would apply. (7) Subregulation (6) does not limit the matters to which the court may have regard in considering whether to include a condition under paragraph (1)(c) in an order under paragraph (1)(a) or (b).

16 Obligation to make a return order

(1) If: (a) an application for a return order for a child is made; and (b) the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child’s removal or retention; and (c) the responsible Central Authority or Article 3 applicant satisfies the court that the child’s removal or retention was wrongful under subregulation (1A); the court must, subject to subregulation (3), make the order. (1A) For subregulation (1), a child’s removal to, or retention in, Australia is wrongful if: (a) the child was under 16; and (b) the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; and (c) the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and (d) the child’s removal to, or retention in, Australia is in breach of those rights of custody; and (e) at the time of the child’s removal or retention, the person, institution or other body: (i) was actually exercising the rights of custody (either jointly or alone); or (ii) would have exercised those rights if the child had not been removed or retained. (2) If: (a) an application for a return order for a child is made; and (b) the application is filed more than one year after the day on which the child was first removed to, or retained in, Australia; and (c) the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment; the court must, subject to subregulation (3), make the order. (3) A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that: (a) the person, institution or other body seeking the child’s return: (i) was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or (ii) had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or (b) there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or (c) each of the following applies: (i) the child objects to being returned; (iii) the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or (d) the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.

Note 1: In considering whether the matter mentioned in paragraph (3)(b) is established:

(a) the court may have regard to any risk that the return of the child under the Convention would result in the child being subject to, or exposed to, family violence; and
(b) the court may have regard to the extent to which the child could be protected from any such risk if the child was returned under the Convention; and
(c) the court may have regard to the matters mentioned in paragraphs (a) and (b) of this note regardless of whether the court is satisfied that family violence has occurred, will occur or is likely to occur.

Note 2: For the definition of family violence, see section 4AB of the Act.

(4) For the purposes of subregulation (3), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention. (5) The court is not precluded from making a return order for the child only because a matter mentioned in subregulation (3) is established by a person opposing return. (6) If: (a) the court is considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b); and (b) a party to the proceedings, or an independent children’s lawyer who represents the interests of the child in the proceedings, raises in the proceedings any condition that could, for the purpose of reducing a risk mentioned in paragraph (3)(b), be included under paragraph 15(1)(c): (i) in a return order for the child; or (ii) in any other order that the court proposes to make under paragraph 15(1)(b) in relation to a return order; the court must consider whether it would be appropriate to include the condition. (7) In considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b), the court may have regard to any other measures that would be reasonably likely to reduce the risk mentioned in paragraph (3)(b). (8) Subregulations (6) and (7) do not limit the matters to which the court may have regard in considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b).

17 Declaration that removal or retention was wrongful

(1) On application, a court may by order declare that: (a) the removal of a child from Australia to a convention country; or (b) the retention of a child in a convention country; was wrongful within the meaning of Article 3 of the Convention. (2) The court may ask a responsible Central Authority to arrange for the person, institution or other body making a request in relation to the return of a child under the Convention to obtain an order of a court, or a decision of a competent authority, of the country in which the child habitually resided immediately before his or her removal or retention declaring that the removal or retention was wrongful within the meaning of Article 3 of the Convention.

18 Effect of other custody orders in Australia or overseas

(1) The following rules apply to the hearing of an application made under subregulation 14(1): (a) the court must not refuse to make a return order for the child only because there is in force or enforceable in Australia an order relating to the custody of the child; (b) the court may take into account the reasons for the making of any order relating to the custody of the child; (c) an order for the return of the child does not determine the merits of any custody issue in relation to the child. (2) 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.

19 When a court not to make certain orders

If an application for a return order for a child is made, a court must not make an order, except an interim order, providing for the custody of the child, within the meaning of regulation 18, until the application is determined.

19A Discharge of return order

(1) If a court makes a return order, the responsible Central Authority, the Article 3 applicant or a respondent to the proceeding may apply to the court, in accordance with Form 2D, for the discharge of the order. (2) The court may make an order discharging a return order, or a part of a return order, only if it is satisfied that: (a) all the parties consent to the return order being discharged; or (b) since the return order was made, circumstances have arisen that make it impracticable for the order to be carried out; or (c) exceptional circumstances exist that justify the return order being discharged; or (d) the day on which the application for the discharge of the return order was made is more than 1 year after the return order was made or any appeal in relation to the return order was determined. (3) In considering whether to make an order discharging a return order, the court must have regard to section 111CE of the Act if the convention country from which the child was removed is also a Convention country within the meaning of subsection 111CA(1) of the Act.

20 Arrangements for return of child

(1) If the responsible Central Authority applies to the court for a return order for a child, and the order is made, the responsible Central Authority must coordinate the making of the arrangements that are necessary to give effect to the order. (2) If: (a) a return order for a child is made; and (b) within 7 days after the order is made, the responsible Central Authority or Article 3 applicant has not been notified that the order has been stayed; the child must be returned in accordance with the order. (3) Subregulation (1) does not require the Commonwealth Central Authority or the State Central Authority to make or pay for the arrangements that are necessary to give effect to the order.

21 Security for costs etc

A responsible Central Authority or a court must not require any security or bond for the payment of costs or expenses of, or incidental to, proceedings falling within the scope of the Convention.

Part 4—Requests to Central Authorities and court applications for access

23 Request for access to child in convention country

(1) A person who claims under a law in force in Australia to have rights of access to a child in a convention country may request a responsible Central Authority to have arrangements made for establishing, organising or securing the effective exercise of those rights in that convention country.

Note: For persons who should be regarded as having a right of access to a child, see paragraph 111B(4)(d) of the Act.

(2) A request must be: (a) in accordance with a form approved, in writing, by the Minister under subregulation (2A); and (b) in accordance with the Convention. (2A) The Minister may approve a form, in writing, for the purposes of paragraph (2)(a). (3) A State Central Authority that is satisfied that a request received by it complies with subregulation (2) must send the request to the Commonwealth Central Authority. (4) If the Commonwealth Central Authority is satisfied that a request received by it complies with subregulation (2), it must take any action required to be taken by a Central Authority under the Convention. (5) A responsible Central Authority that is satisfied that a request received by it does not comply with subregulation (2) may, by notice in writing, refuse to accept the request. (6) A notice under subregulation (5) from the Commonwealth Central Authority must: (a) be sent to the person who made the request; and (b) if the Commonwealth Central Authority received the request from a State Central Authority—be sent to the State Central Authority; and (c) include the reason for the refusal. (7) A notice under subregulation (5) from a State Central Authority must: (a) be sent to the person who made the request; and (b) include the reason for the refusal.

24 Request for access to child in Australia

(1) The Commonwealth Central Authority must take action to establish, organise or secure the effective exercise of rights of access to a child in Australia if: (a) it receives a request from a Central Authority on behalf of a person who claims: (i) to have rights of access to the child under a law in force in a convention country; and (ii) that those rights have been breached; and (b) it is satisfied that the request is in accordance with the Convention. (2) The Commonwealth Central Authority may, by notice in writing, refuse to accept a request received by it if it is satisfied that the request is not in accordance with the Convention. (3) A notice under subregulation (2) must: (a) be sent to the Central Authority that sent the request; and (b) include the reason for the refusal. (4) For subregulation (1), the action taken may include any of the following: (a) transferring the request to a State Central Authority; (b) applying to a court under regulation 25 for an order that is necessary or appropriate to establish, organise or secure the effective exercise of the rights of access to which the request relates; (c) seeking an amicable resolution in relation to the rights of access to the child.

25 Application for access to child in Australia

(1) The responsible Central Authority may apply to the court, in accordance with Form 4, for any of the following orders: (a) an order specifying with whom a child is to spend time or communicate; (b) an order for the issue of a warrant mentioned in regulation 31; (c) any other order that the responsible Central Authority considers appropriate to give effect to the Convention. (2) If a copy of an application made under subregulation (1) is served on a person: (a) the person must file an answer, or an answer and a cross‑application, in accordance with Form 4A; and (b) the responsible Central Authority may file a reply in accordance with Form 4B.

25A Orders

(1) If a court is satisfied that it is desirable to do so, the court may, in relation to an application made under subregulation 25(1): (a) make an order of a kind mentioned in that regulation; and (b) make any other order that the court considers to be appropriate to give effect to the Convention; and (c) include in an order to which paragraph (a) or (b) applies a condition that the court considers to be appropriate to give effect to the Convention. (2) In determining an application made under subregulation 25(1) seeking an order of the kind mentioned in paragraph 25(1)(a), the court must have regard to the matters set out in section 111CW of the Act if the convention country under the laws of which the person mentioned in paragraph 24(1)(a) claims to have access rights to the child is also a Convention country within the meaning of subsection 111CA(1) of the Act. (3) The court may make an order under subregulation (1) regardless of: (a) whether an order or determination (however described) has been made under a law in force in another convention country about rights of access to the child concerned; or (b) if the child was removed to Australia—when that happened; or (c) whether the child has been wrongfully removed to, or retained in, Australia. (4) If the responsible Central Authority applies to the court for an order under subregulation (1), and the order is made, the Commonwealth Central Authority or the State Central Authority is not required to make or pay for the arrangements that are necessary to give effect to the order.

Part 5—General

26 Reports by family consultants

(1) In proceedings under these Regulations in a court, the court may: (a) direct a family consultant 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 family consultant may include in a report, in addition to the matters required to be included in the report, any other matter that relates to the care, welfare or development 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 family consultant 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 family consultant must report the failure to the court. (5) If, under subregulation (4), a family consultant 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. (7) The court may direct the Commonwealth Central Authority or a State Central Authority to inform a Central Authority in a convention country about a matter that: (a) relates to the welfare of the child; and (b) under subregulation (2)—is included in a report.

27 Service of notice of certain applications

(1) Subject to subregulation (2), notice of an application under regulation 14, 19A or 25 that includes a copy of the application must be served by the applicant in accordance with the applicable Rules of Court: (a) for an application under regulation 14—on the person whom the applicant claims has wrongfully removed or retained the child who is the subject of the application; and (b) for an application under regulation 19A—on any other party to the proceeding for return of the child; and (c) for an application under regulation 25—on the person, institution or other body in possession of the child who is the subject of the application. (2) In accordance with the applicable 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.

28 Change of venue

(1) This regulation applies if: (a) an application (the original application) is made to a court in a State or Territory (the first jurisdiction) under regulation 14, 19A or 25; and (b) the child who is the subject of the original application is located in another State or Territory (the second jurisdiction) before the application is determined. (1A) The Central Authority in the second jurisdiction may make a corresponding application (a later application) to another registry of the court, or to another court, in the second jurisdiction. (2) If a later application is made, the applicant for the later application must: (a) refer in the later application to the original application; and (b) as soon as practicable, inform the relevant Registrar of the court in which the original application was filed, in writing, of the later application. (2A) As soon as practicable after receiving information under paragraph (2)(b), the relevant Registrar of the court in which the original application was filed must transfer all records and other documents filed in the court relating to the original application to the relevant Registrar of the court in which the 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 (3), 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.

29 Evidentiary provisions

(1) This regulation applies in a proceeding in a court under regulation 14, 19A or 25 in which the applicant is a responsible Central Authority. (2) The application under regulation 14, 19A or 25, or a request under regulation 13, 24 or 25 relating to that application, or any document attached to or given in support of that application or request, is admissible as evidence of the facts stated in that application, request or document. (3) An affidavit of a witness who resides outside Australia that is filed in the proceeding is admissible as evidence even if the witness does not attend the proceeding for cross‑examination. (4) A statement contained in a document that claims: (a) to set out or summarise evidence given in a proceeding 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; or (b) to set out or summarise evidence taken in a convention country for the purpose of a proceeding 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 a proceeding 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, an 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 that person’s signature or official position. (5) 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. (6) A document that claims: (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, an officer of the court or that authority; is admissible as evidence of that order or decision without proof of that person’s signature or official position. (7) 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.

30 Costs of applications

(1) This regulation applies if: (a) either: (i) a responsible Central Authority has applied to the court for an order in relation to a child under Part 3 or 4; or (ii) an Article 3 applicant has applied to the court for an order in relation to a child under Part 3; and (b) the court makes an order under regulation 15, 17, 19A, 25A or 26. (2) The responsible Central Authority may apply to the court for an order that the person who removed or retained the child, or who prevented the exercise of rights of access to the child, must pay to the responsible Central Authority the costs of the application mentioned in subregulation (3). (3) For subregulation (2), the costs are the necessary expenses incurred by the responsible Central Authority, including the following: (a) costs incurred in locating the child; (b) costs of legal representation; (c) costs incurred in relation to the attendance by the child or an interested party at a family consultant for the preparation of a report by that consultant; (d) costs incurred in coordinating the making of arrangements for the return of the child. (4) The Article 3 applicant may apply to the court for an order that the person who removed or retained the child, or who prevented the exercise of rights of access to the child, must pay to the Article 3 applicant the costs of the application mentioned in subregulation (5). (5) For subregulation (4), the costs are the necessary expenses incurred by the Article 3 applicant, including: (a) travelling expenses; and (b) the costs mentioned in paragraphs (3)(a) to (c).

31 Warrants

For subparagraph 14(1)(a)(iii) and paragraphs 14(2)(a) and 25(1)(b), a warrant: (a) authorises a person named or described in the warrant, with such assistance as is necessary and reasonable and, if necessary and reasonable, by force: (i) to find and recover the child; and (ii) if the person reasonably believes that the child is in, or on, a vehicle, vessel, aircraft or premises and the circumstances are so serious and urgent that the entry and search of the vehicle, vessel, aircraft or premises is justified: (A) to stop, enter and search the vehicle, vessel or aircraft; or (B) to enter and search the premises; and (iii) to deliver the child to the person named in the warrant; and (b) must be in accordance with Form 2C.

Part 6—Application, transitional and saving provisions

Division 1—Saving provisions relating to the Family Law (Child Abduction Convention) Regulations 1986

32 Saving of forms

(1) Despite the amendments made by items 3, 4 and 9 of Schedule 1 to the Family Law Legislation Amendment (Miscellaneous Measures) Regulations 2019, Form 1 in Schedule 3, as in force immediately before the commencement of those items, continues in force after that commencement until the Minister approves a form under subregulation 11(2A). (2) Despite the amendments made by items 5, 6 and 9 of Schedule 1 to the Family Law Legislation Amendment (Miscellaneous Measures) Regulations 2019, Form 3 in Schedule 3, as in force immediately before the commencement of those items, continues in force after that commencement until the Minister approves a form under subregulation 23(2A).

Division 2—Saving provision relating to the Family Law (Child Abduction Convention) Amendment (Family Violence) Regulations 2022

33 Saving provision

Despite the amendments of this instrument made by the Family Law (Child Abduction Convention) Amendment (Family Violence) Regulations 2022 (the amending regulations), this instrument continues to apply, in relation to any application made under regulation 14 or 14A of this instrument before the commencement of the amending regulations, as if those amendments had not been made.

Division 3—Application provision relating to the Family Law (Child Abduction Convention) Amendment (Child’s Objection) Regulations 2024

34 Application provision

The amendment of this instrument made by the Family Law (Child Abduction Convention) Amendment (Child’s Objection) Regulations 2024 applies in relation to the following proceedings: (a) proceedings instituted on or after the day that Schedule 4 to the Family Law Amendment Act 2023 commences (the commencement day); (b) proceedings instituted before, and not finally determined by, the commencement day, other than proceedings in respect of which a final hearing has commenced by the commencement day.

Part 1—Preliminary

1 Name of Regulations

These Regulations are the Family Law (Child Abduction Convention) Regulations 1986.

1AA Authority

These Regulations are made under the Family Law Act 1975.

1A Purpose

(1) The purpose of these Regulations is to give effect to section 111B of the Act. (2) These Regulations are intended to be construed: (a) having regard to the principles and objects mentioned in the preamble to and Article 1 of the Convention; and (b) recognising, in accordance with the Convention, that the appropriate forum for resolving disputes relating to a child’s care, welfare and development is ordinarily the child’s country of habitual residence; and (c) recognising that the effective implementation of the Convention depends on the reciprocity and mutual respect between judicial or administrative authorities (as the case may be) of convention countries.

2 Definitions

Note: A number of expressions used in these Regulations are defined in the Act, including the following:

(a) applicable Rules of Court;
(b) court.

(1) In these Regulations:

Act means the Family Law Act 1975.

Article 3 applicant means a person, institution or other body that has made an application under paragraph 14(1)(b) or subregulation 14(2).

Central Authority has the meaning it has in the Convention.

child means a person who has not attained the age of 16 years.

Commonwealth Central Authority means the Secretary of the Attorney‑General’s Department.

Convention means the Convention on the Civil Aspects of International Child Abduction referred to in section 111B of the Act, a copy of the English text of which is set out in Schedule 1.

convention country means any country in respect of which the Convention has entered into force with Australia.

Note: A list of countries in respect of which the Convention has entered into force with Australia could in 2019 be viewed on the Department’s website (https://www.ag.gov.au).

filed has the same meaning as in the applicable Rules of Court.

relevant Registrar of a court means:

(a) in relation to the Federal Circuit and Family Court of Australia (Division 1)—the following:
(i) the Chief Executive Officer and Principal Registrar (within the meaning of the Federal Circuit and Family Court of Australia Act 2021);
(ii) a Senior Registrar or Registrar of that court; or
(b) in relation to the Federal Circuit and Family Court of Australia (Division 2)—the following:
(i) the Chief Executive Officer and Principal Registrar (within the meaning of the Federal Circuit and Family Court of Australia Act 2021);
(ii) a Senior Registrar or Registrar of that court; or
(c) in relation to any other court—the principal officer of the court or any other appropriate officer or staff member of the court.

request means a request made to a responsible Central Authority for the purposes of Article 8 or 21 of the Convention.

responsible Central Authority, in relation to action to be taken in a State or Territory, means the Commonwealth Central Authority or the State Central Authority of that State or Territory, as the case requires.

return order means an order under Part 3 for the return, under the Convention, of a child who has been removed to, or retained in, Australia.

rights of access include the right to take a child for a limited period of time to a place other than the child’s habitual residence.

rights of custody has the meaning given in regulation 4.

State Central Authority means a person appointed under subregulation 8(1) to be the Central Authority of a State or Territory.

(1A) A reference in these Regulations to a form by number is a reference to the form so numbered in Schedule 3. (1B) Unless the contrary intention appears, an expression that is used in these Regulations and in the Convention has the same meaning in these regulations as in the Convention. (1C) A reference in these Regulations to a child who is removed: (a) from Australia to a convention country; or (b) from a convention country to another convention country or to Australia; includes a reference to the removal of the child to the convention country concerned or to Australia, as the case may be, whether or not the child is first removed to another country. (2) The removal or retention of a child is wrongful in the circumstances mentioned in Article 3 of the Convention.

4 Meaning of rights of custody

(1) For these Regulations, a person, institution or other body has rights of custody in relation to a child if: (a) the child was habitually resident in Australia or in a convention country immediately before his or her removal or retention; and (b) rights of custody in relation to the child are attributed to the person, institution or other body, either jointly or alone, under a law in force in Australia or in the convention country in which the child habitually resided immediately before his or her removal or retention. (2) For the purposes of subregulation (1), rights of custody include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child. (3) For the purposes of this regulation, rights of custody may arise: (a) by operation of law; or (b) by reason of a judicial or administrative decision; or (c) by reason of an agreement having legal effect under a law in force in Australia or a convention country.

5 Commonwealth Central Authority—duties, powers and functions

(1) In addition to the other functions conferred on the Commonwealth Central Authority by these Regulations, the functions of the Commonwealth Central Authority are: (a) to do, or co‑ordinate the doing of, anything that is necessary to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under the Convention; and (b) to advise the Attorney‑General, either on the initiative of the Commonwealth Central Authority or on a request made to that Authority by the Attorney‑General, on all matters that concern, or arise out of performing, those obligations, including any need for additional legislation required for performing those obligations; and (c) to do everything that is necessary or appropriate to give effect to the Convention in relation to the welfare of a child on the return of the child to Australia. (2) The Commonwealth Central Authority has all the duties, may exercise all the powers, and shall perform all the functions, that a Central Authority has under the Convention. (3) The Commonwealth Central Authority must perform its functions and exercise its powers as quickly as a proper consideration of each matter relating to the performance of a function or the exercise of a power allows.

6 These Regulations do not affect other powers of, or rights of application to, a court

(1) These Regulations are not intended to prevent a person, institution or other body that has rights of custody in relation to a child for the purposes of the Convention from applying to a court if the child is removed to, or retained in, Australia in breach of those rights. (2) These Regulations are not to be taken as preventing a court from making an order at any time under Part VII of the Act or under any other law in force in Australia for the return of a child.

7 Immunity of Commonwealth Central Authority etc in respect of orders to pay costs

A court must not make an order that requires the Commonwealth Central Authority or a State Central Authority to pay costs in relation to his or her exercising the powers, or performing the functions, of the Commonwealth Central Authority.

8 State Central Authority—appointment

(1) The Attorney‑General may appoint a person to be the Central Authority of a State or Territory for the purposes of these Regulations. (2) The power to appoint a person under subregulation (1) includes a power to appoint any person from time to time holding, occupying or performing the duties of a specified office or position of the Commonwealth or of a State or Territory. (3) An appointment of a person under subregulation (1) may be expressed to have effect only in such circumstances as are specified in the instrument of appointment.

9 State Central Authority—duties, powers and functions

Subject to subregulation 8(3), a State Central Authority has all the duties, may exercise all the powers, and may perform all the functions, of the Commonwealth Central Authority.

Part 2—Requests to Central Authorities, except for access

11 Request for return of child abducted from Australia

(1) A person, institution or other body that claims under a law in force in Australia to have rights of custody in relation to a child who, in breach of those rights, has been: (a) removed from Australia to a convention country; or (b) retained in a convention country; may request a responsible Central Authority to have the claim sent to the Central Authority in the country to which the child has been removed or in which the child is retained. (2) A request must be: (a) in accordance with a form approved, in writing, by the Minister under subregulation (2A); and (b) in accordance with the Convention. (2A) The Minister may approve a form, in writing, for the purposes of paragraph (2)(a). (3) A State Central Authority that is satisfied that a request received by it complies with subregulation (2) must send the request to the Commonwealth Central Authority. (4) If the Commonwealth Central Authority is satisfied that a request received by it complies with subregulation (2), the Commonwealth Central Authority must, on behalf of the person, institution or other body, take any action required to be taken by a Central Authority under the Convention. (5) A responsible Central Authority that is satisfied that a request received by it does not comply with subregulation (2) may, by notice in writing, refuse to accept the request. (6) A notice under subregulation (5) from the Commonwealth Central Authority must: (a) be sent to the person, institution or other body that made the request; and (b) if the Commonwealth Central Authority received the request from a State Central Authority—be sent to the State Central Authority; and (c) include the reason for the refusal. (7) A notice under subregulation (5) from a State Central Authority must: (a) be sent to the person, institution or other body that made the request; and (b) include the reason for the refusal.

13 Request for return of child abducted to Australia

(1) The Commonwealth Central Authority must take action to secure the return of a child under the Convention if: (a) it receives a request from: (i) a person, institution or other body that claims to have rights of custody in relation to the child who, in breach of those rights, has been removed from a convention country to Australia or has been retained in Australia; or (ii) a Central Authority on behalf of a person, institution or other body mentioned in subparagraph (i); and (b) it is satisfied that the request is in accordance with the Convention. (2) The Commonwealth Central Authority may, by notice in writing, refuse to accept a request received by it if it is satisfied that the request is not in accordance with the Convention. (3) A notice under subregulation (2) must: (a) be sent to the person, institution or other body that made the request; and (b) if the Commonwealth Central Authority received the request from a Central Authority—be sent to the Central Authority; and (c) include the reason for the refusal. (4) For subregulation (1), the action taken may include any of the following: (a) transferring the request to a State Central Authority; (b) seeking an amicable resolution of the differences, in relation to the removal or retention of the child, between the person making the request for the child’s return and the person opposing the child’s return; (c) seeking the voluntary return of the child; (d) applying for an order under Part 3.

Part 3—Court applications, except for access

14 Applications to court

(1) If a child is removed from a convention country to, or retained in, Australia: (a) the responsible Central Authority may apply to the court, in accordance with Form 2, for any of the following orders: (i) a return order for the child; (ii) an order for the delivery of the passport of the child, and the passport of any other relevant person, to the responsible Central Authority, a member of the Australian Federal Police or a person specified in the order, on conditions appropriate to give effect to the Convention; (iii) an order for the issue of a warrant mentioned in regulation 31; (iv) an order directing that: (A) the child not be removed from a specified place; and (B) members of the Australian Federal Police prevent the child being removed from that place; (v) an order requiring that arrangements be made (as necessary) to place the child with an appropriate person, institution or other body to secure the welfare of the child, until a request under regulation 13 is determined; (vi) any other order that the responsible Central Authority considers appropriate to give effect to the Convention; or (b) a person, institution or other body that has rights of custody in relation to the child for the purposes of the Convention may apply to the court, in accordance with Form 2, for an order mentioned in subparagraph (a)(i), (ii), (iii), (iv) or (v). (2) If the responsible Central Authority, or a person, institution or other body that has rights of custody in relation to a child for the purposes of the Convention, has reasonable grounds to believe that there is an appreciable possibility or a threat that the child will be removed from Australia, the responsible Central Authority or person, institution or other body may: (a) apply to the court, in accordance with Form 2, for an order for the issue of a warrant mentioned in regulation 31; or (b) apply to the court for an order for the delivery of the passport of the child, and the passport of any other relevant person, to the responsible Central Authority, a member of the Australian Federal Police or a person specified in the order, on conditions appropriate to give effect to the Convention. (3) If a child is wrongfully removed from Australia to, or retained in, a convention country, the responsible Central Authority may apply to the court, in accordance with Form 2, for: (a) an order that the responsible Central Authority considers necessary or appropriate to give effect to the Convention in relation to the welfare of the child after his or her return to Australia; or (b) any other order that the responsible Central Authority considers appropriate to give effect to the Convention. (4) If a copy of an application made under subregulation (1), (2) or (3) is served on a person: (a) the person must file an answer, or an answer and a cross‑application, in accordance with Form 2A; and (b) the applicant may file a reply in accordance with Form 2B.

14A Further applications to court

(1) A responsible Central Authority or person, institution or other body that has made an application under subregulation 14(1), (2) or (3) may make a further application for an order mentioned in those subregulations. (2) An application under subregulation (1) must be in accordance with Form 2 in Schedule 2 to the Family Law Rules 2004.

15 Orders

(1) If a court is satisfied that it is desirable to do so, the court may, in relation to an application made under regulation 14: (a) make an order of a kind mentioned in that regulation; and (b) make any other order that the court considers to be appropriate to give effect to the Convention; and (c) include in an order to which paragraph (a) or (b) applies a condition that the court considers to be appropriate to give effect to the Convention. (2) A court must, so far as practicable, give to an application such priority as will ensure that the application is dealt with as quickly as a proper consideration of each matter relating to the application allows. (4) If an application made under regulation 14 is not determined by a court within the period of 42 days commencing on the day on which the application is filed: (a) the responsible Central Authority or Article 3 applicant who made the application may ask the relevant Registrar of the court to state in writing the reasons for the application not having been determined within that period; and (b) as soon as practicable after being asked, the relevant Registrar must give the statement to the responsible Central Authority or Article 3 applicant. (5) To avoid doubt, a court may make an order under paragraph (1)(b), or include a condition under paragraph (1)(c) in an order under paragraph (1)(a) or (b), for the purpose of reducing a risk referred to in paragraph 16(3)(b) regardless of whether the court is satisfied that: (a) the risk will eventuate, or is likely to eventuate; or (b) the risk has eventuated in the past. (6) In considering whether to include a condition under paragraph (1)(c) in an order under paragraph (1)(a) or (b), the court may have regard to the following matters: (a) whether compliance with the proposed condition will be reasonably practicable; (b) whether the condition is proportionate; (c) whether the condition would usurp the regular functions of the courts or authorities in the child’s state of habitual residence; (d) whether the condition would be enforceable in the jurisdiction or jurisdictions in which it would apply. (7) Subregulation (6) does not limit the matters to which the court may have regard in considering whether to include a condition under paragraph (1)(c) in an order under paragraph (1)(a) or (b).

16 Obligation to make a return order

(1) If: (a) an application for a return order for a child is made; and (b) the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child’s removal or retention; and (c) the responsible Central Authority or Article 3 applicant satisfies the court that the child’s removal or retention was wrongful under subregulation (1A); the court must, subject to subregulation (3), make the order. (1A) For subregulation (1), a child’s removal to, or retention in, Australia is wrongful if: (a) the child was under 16; and (b) the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; and (c) the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and (d) the child’s removal to, or retention in, Australia is in breach of those rights of custody; and (e) at the time of the child’s removal or retention, the person, institution or other body: (i) was actually exercising the rights of custody (either jointly or alone); or (ii) would have exercised those rights if the child had not been removed or retained. (2) If: (a) an application for a return order for a child is made; and (b) the application is filed more than one year after the day on which the child was first removed to, or retained in, Australia; and (c) the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment; the court must, subject to subregulation (3), make the order. (3) A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that: (a) the person, institution or other body seeking the child’s return: (i) was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or (ii) had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or (b) there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or (c) each of the following applies: (i) the child objects to being returned; (iii) the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or (d) the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.

Note 1: In considering whether the matter mentioned in paragraph (3)(b) is established:

(a) the court may have regard to any risk that the return of the child under the Convention would result in the child being subject to, or exposed to, family violence; and
(b) the court may have regard to the extent to which the child could be protected from any such risk if the child was returned under the Convention; and
(c) the court may have regard to the matters mentioned in paragraphs (a) and (b) of this note regardless of whether the court is satisfied that family violence has occurred, will occur or is likely to occur.

Note 2: For the definition of family violence, see section 4AB of the Act.

(4) For the purposes of subregulation (3), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention. (5) The court is not precluded from making a return order for the child only because a matter mentioned in subregulation (3) is established by a person opposing return. (6) If: (a) the court is considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b); and (b) a party to the proceedings, or an independent children’s lawyer who represents the interests of the child in the proceedings, raises in the proceedings any condition that could, for the purpose of reducing a risk mentioned in paragraph (3)(b), be included under paragraph 15(1)(c): (i) in a return order for the child; or (ii) in any other order that the court proposes to make under paragraph 15(1)(b) in relation to a return order; the court must consider whether it would be appropriate to include the condition. (7) In considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b), the court may have regard to any other measures that would be reasonably likely to reduce the risk mentioned in paragraph (3)(b). (8) Subregulations (6) and (7) do not limit the matters to which the court may have regard in considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b).

17 Declaration that removal or retention was wrongful

(1) On application, a court may by order declare that: (a) the removal of a child from Australia to a convention country; or (b) the retention of a child in a convention country; was wrongful within the meaning of Article 3 of the Convention. (2) The court may ask a responsible Central Authority to arrange for the person, institution or other body making a request in relation to the return of a child under the Convention to obtain an order of a court, or a decision of a competent authority, of the country in which the child habitually resided immediately before his or her removal or retention declaring that the removal or retention was wrongful within the meaning of Article 3 of the Convention.

18 Effect of other custody orders in Australia or overseas

(1) The following rules apply to the hearing of an application made under subregulation 14(1): (a) the court must not refuse to make a return order for the child only because there is in force or enforceable in Australia an order relating to the custody of the child; (b) the court may take into account the reasons for the making of any order relating to the custody of the child; (c) an order for the return of the child does not determine the merits of any custody issue in relation to the child. (2) 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.

19 When a court not to make certain orders

If an application for a return order for a child is made, a court must not make an order, except an interim order, providing for the custody of the child, within the meaning of regulation 18, until the application is determined.

19A Discharge of return order

(1) If a court makes a return order, the responsible Central Authority, the Article 3 applicant or a respondent to the proceeding may apply to the court, in accordance with Form 2D, for the discharge of the order. (2) The court may make an order discharging a return order, or a part of a return order, only if it is satisfied that: (a) all the parties consent to the return order being discharged; or (b) since the return order was made, circumstances have arisen that make it impracticable for the order to be carried out; or (c) exceptional circumstances exist that justify the return order being discharged; or (d) the day on which the application for the discharge of the return order was made is more than 1 year after the return order was made or any appeal in relation to the return order was determined. (3) In considering whether to make an order discharging a return order, the court must have regard to section 111CE of the Act if the convention country from which the child was removed is also a Convention country within the meaning of subsection 111CA(1) of the Act.

20 Arrangements for return of child

(1) If the responsible Central Authority applies to the court for a return order for a child, and the order is made, the responsible Central Authority must coordinate the making of the arrangements that are necessary to give effect to the order. (2) If: (a) a return order for a child is made; and (b) within 7 days after the order is made, the responsible Central Authority or Article 3 applicant has not been notified that the order has been stayed; the child must be returned in accordance with the order. (3) Subregulation (1) does not require the Commonwealth Central Authority or the State Central Authority to make or pay for the arrangements that are necessary to give effect to the order.

21 Security for costs etc

A responsible Central Authority or a court must not require any security or bond for the payment of costs or expenses of, or incidental to, proceedings falling within the scope of the Convention.

Part 4—Requests to Central Authorities and court applications for access

23 Request for access to child in convention country

(1) A person who claims under a law in force in Australia to have rights of access to a child in a convention country may request a responsible Central Authority to have arrangements made for establishing, organising or securing the effective exercise of those rights in that convention country.

Note: For persons who should be regarded as having a right of access to a child, see paragraph 111B(4)(d) of the Act.

(2) A request must be: (a) in accordance with a form approved, in writing, by the Minister under subregulation (2A); and (b) in accordance with the Convention. (2A) The Minister may approve a form, in writing, for the purposes of paragraph (2)(a). (3) A State Central Authority that is satisfied that a request received by it complies with subregulation (2) must send the request to the Commonwealth Central Authority. (4) If the Commonwealth Central Authority is satisfied that a request received by it complies with subregulation (2), it must take any action required to be taken by a Central Authority under the Convention. (5) A responsible Central Authority that is satisfied that a request received by it does not comply with subregulation (2) may, by notice in writing, refuse to accept the request. (6) A notice under subregulation (5) from the Commonwealth Central Authority must: (a) be sent to the person who made the request; and (b) if the Commonwealth Central Authority received the request from a State Central Authority—be sent to the State Central Authority; and (c) include the reason for the refusal. (7) A notice under subregulation (5) from a State Central Authority must: (a) be sent to the person who made the request; and (b) include the reason for the refusal.

24 Request for access to child in Australia

(1) The Commonwealth Central Authority must take action to establish, organise or secure the effective exercise of rights of access to a child in Australia if: (a) it receives a request from a Central Authority on behalf of a person who claims: (i) to have rights of access to the child under a law in force in a convention country; and (ii) that those rights have been breached; and (b) it is satisfied that the request is in accordance with the Convention. (2) The Commonwealth Central Authority may, by notice in writing, refuse to accept a request received by it if it is satisfied that the request is not in accordance with the Convention. (3) A notice under subregulation (2) must: (a) be sent to the Central Authority that sent the request; and (b) include the reason for the refusal. (4) For subregulation (1), the action taken may include any of the following: (a) transferring the request to a State Central Authority; (b) applying to a court under regulation 25 for an order that is necessary or appropriate to establish, organise or secure the effective exercise of the rights of access to which the request relates; (c) seeking an amicable resolution in relation to the rights of access to the child.

25 Application for access to child in Australia

(1) The responsible Central Authority may apply to the court, in accordance with Form 4, for any of the following orders: (a) an order specifying with whom a child is to spend time or communicate; (b) an order for the issue of a warrant mentioned in regulation 31; (c) any other order that the responsible Central Authority considers appropriate to give effect to the Convention. (2) If a copy of an application made under subregulation (1) is served on a person: (a) the person must file an answer, or an answer and a cross‑application, in accordance with Form 4A; and (b) the responsible Central Authority may file a reply in accordance with Form 4B.

25A Orders

(1) If a court is satisfied that it is desirable to do so, the court may, in relation to an application made under subregulation 25(1): (a) make an order of a kind mentioned in that regulation; and (b) make any other order that the court considers to be appropriate to give effect to the Convention; and (c) include in an order to which paragraph (a) or (b) applies a condition that the court considers to be appropriate to give effect to the Convention. (2) In determining an application made under subregulation 25(1) seeking an order of the kind mentioned in paragraph 25(1)(a), the court must have regard to the matters set out in section 111CW of the Act if the convention country under the laws of which the person mentioned in paragraph 24(1)(a) claims to have access rights to the child is also a Convention country within the meaning of subsection 111CA(1) of the Act. (3) The court may make an order under subregulation (1) regardless of: (a) whether an order or determination (however described) has been made under a law in force in another convention country about rights of access to the child concerned; or (b) if the child was removed to Australia—when that happened; or (c) whether the child has been wrongfully removed to, or retained in, Australia. (4) If the responsible Central Authority applies to the court for an order under subregulation (1), and the order is made, the Commonwealth Central Authority or the State Central Authority is not required to make or pay for the arrangements that are necessary to give effect to the order.

Part 5—General

26 Reports by family consultants

(1) In proceedings under these Regulations in a court, the court may: (a) direct a family consultant 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 family consultant may include in a report, in addition to the matters required to be included in the report, any other matter that relates to the care, welfare or development 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 family consultant 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 family consultant must report the failure to the court. (5) If, under subregulation (4), a family consultant 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. (7) The court may direct the Commonwealth Central Authority or a State Central Authority to inform a Central Authority in a convention country about a matter that: (a) relates to the welfare of the child; and (b) under subregulation (2)—is included in a report.

27 Service of notice of certain applications

(1) Subject to subregulation (2), notice of an application under regulation 14, 19A or 25 that includes a copy of the application must be served by the applicant in accordance with the applicable Rules of Court: (a) for an application under regulation 14—on the person whom the applicant claims has wrongfully removed or retained the child who is the subject of the application; and (b) for an application under regulation 19A—on any other party to the proceeding for return of the child; and (c) for an application under regulation 25—on the person, institution or other body in possession of the child who is the subject of the application. (2) In accordance with the applicable 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.

28 Change of venue

(1) This regulation applies if: (a) an application (the original application) is made to a court in a State or Territory (the first jurisdiction) under regulation 14, 19A or 25; and (b) the child who is the subject of the original application is located in another State or Territory (the second jurisdiction) before the application is determined. (1A) The Central Authority in the second jurisdiction may make a corresponding application (a later application) to another registry of the court, or to another court, in the second jurisdiction. (2) If a later application is made, the applicant for the later application must: (a) refer in the later application to the original application; and (b) as soon as practicable, inform the relevant Registrar of the court in which the original application was filed, in writing, of the later application. (2A) As soon as practicable after receiving information under paragraph (2)(b), the relevant Registrar of the court in which the original application was filed must transfer all records and other documents filed in the court relating to the original application to the relevant Registrar of the court in which the 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 (3), 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.

29 Evidentiary provisions

(1) This regulation applies in a proceeding in a court under regulation 14, 19A or 25 in which the applicant is a responsible Central Authority. (2) The application under regulation 14, 19A or 25, or a request under regulation 13, 24 or 25 relating to that application, or any document attached to or given in support of that application or request, is admissible as evidence of the facts stated in that application, request or document. (3) An affidavit of a witness who resides outside Australia that is filed in the proceeding is admissible as evidence even if the witness does not attend the proceeding for cross‑examination. (4) A statement contained in a document that claims: (a) to set out or summarise evidence given in a proceeding 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; or (b) to set out or summarise evidence taken in a convention country for the purpose of a proceeding 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 a proceeding 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, an 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 that person’s signature or official position. (5) 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. (6) A document that claims: (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, an officer of the court or that authority; is admissible as evidence of that order or decision without proof of that person’s signature or official position. (7) 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.

30 Costs of applications

(1) This regulation applies if: (a) either: (i) a responsible Central Authority has applied to the court for an order in relation to a child under Part 3 or 4; or (ii) an Article 3 applicant has applied to the court for an order in relation to a child under Part 3; and (b) the court makes an order under regulation 15, 17, 19A, 25A or 26. (2) The responsible Central Authority may apply to the court for an order that the person who removed or retained the child, or who prevented the exercise of rights of access to the child, must pay to the responsible Central Authority the costs of the application mentioned in subregulation (3). (3) For subregulation (2), the costs are the necessary expenses incurred by the responsible Central Authority, including the following: (a) costs incurred in locating the child; (b) costs of legal representation; (c) costs incurred in relation to the attendance by the child or an interested party at a family consultant for the preparation of a report by that consultant; (d) costs incurred in coordinating the making of arrangements for the return of the child. (4) The Article 3 applicant may apply to the court for an order that the person who removed or retained the child, or who prevented the exercise of rights of access to the child, must pay to the Article 3 applicant the costs of the application mentioned in subregulation (5). (5) For subregulation (4), the costs are the necessary expenses incurred by the Article 3 applicant, including: (a) travelling expenses; and (b) the costs mentioned in paragraphs (3)(a) to (c).

31 Warrants

For subparagraph 14(1)(a)(iii) and paragraphs 14(2)(a) and 25(1)(b), a warrant: (a) authorises a person named or described in the warrant, with such assistance as is necessary and reasonable and, if necessary and reasonable, by force: (i) to find and recover the child; and (ii) if the person reasonably believes that the child is in, or on, a vehicle, vessel, aircraft or premises and the circumstances are so serious and urgent that the entry and search of the vehicle, vessel, aircraft or premises is justified: (A) to stop, enter and search the vehicle, vessel or aircraft; or (B) to enter and search the premises; and (iii) to deliver the child to the person named in the warrant; and (b) must be in accordance with Form 2C.

Part 6—Application, transitional and saving provisions

Division 1—Saving provisions relating to the Family Law (Child Abduction Convention) Regulations 1986

32 Saving of forms

(1) Despite the amendments made by items 3, 4 and 9 of Schedule 1 to the Family Law Legislation Amendment (Miscellaneous Measures) Regulations 2019, Form 1 in Schedule 3, as in force immediately before the commencement of those items, continues in force after that commencement until the Minister approves a form under subregulation 11(2A). (2) Despite the amendments made by items 5, 6 and 9 of Schedule 1 to the Family Law Legislation Amendment (Miscellaneous Measures) Regulations 2019, Form 3 in Schedule 3, as in force immediately before the commencement of those items, continues in force after that commencement until the Minister approves a form under subregulation 23(2A).

Division 2—Saving provision relating to the Family Law (Child Abduction Convention) Amendment (Family Violence) Regulations 2022

33 Saving provision

Despite the amendments of this instrument made by the Family Law (Child Abduction Convention) Amendment (Family Violence) Regulations 2022 (the amending regulations), this instrument continues to apply, in relation to any application made under regulation 14 or 14A of this instrument before the commencement of the amending regulations, as if those amendments had not been made.

Division 3—Application provision relating to the Family Law (Child Abduction Convention) Amendment (Child’s Objection) Regulations 2024

34 Application provision

The amendment of this instrument made by the Family Law (Child Abduction Convention) Amendment (Child’s Objection) Regulations 2024 applies in relation to the following proceedings: (a) proceedings instituted on or after the day that Schedule 4 to the Family Law Amendment Act 2023 commences (the commencement day); (b) proceedings instituted before, and not finally determined by, the commencement day, other than proceedings in respect of which a final hearing has commenced by the commencement day.

32 Saving of forms

(1) Despite the amendments made by items 3, 4 and 9 of Schedule 1 to the Family Law Legislation Amendment (Miscellaneous Measures) Regulations 2019, Form 1 in Schedule 3, as in force immediately before the commencement of those items, continues in force after that commencement until the Minister approves a form under subregulation 11(2A). (2) Despite the amendments made by items 5, 6 and 9 of Schedule 1 to the Family Law Legislation Amendment (Miscellaneous Measures) Regulations 2019, Form 3 in Schedule 3, as in force immediately before the commencement of those items, continues in force after that commencement until the Minister approves a form under subregulation 23(2A).