These Regulations are the Family Law (Child Protection Convention) Regulations 2003.
1A Authority
These Regulations are made under the Family Law Act 1975.
3 Definitions
(1) In these Regulations:
Act means the Family Law Act 1975.
Bureau means the Permanent Bureau of the Hague Conference on Private International Law.
Commonwealth measure means a Commonwealth personal protection measure or a Commonwealth property protection measure.
document that is a foreign measure includes a document that, for a purpose of the Child Protection Convention, states the details of a foreign measure.
protection measure means a measure of protection within the meaning of the Child Protection Convention.
recognised foreign measure means a foreign measure that, under regulation 12, has been registered in a court in Australia.
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.
special medical treatment, in relation to a child, means medical treatment that a parent of the child does not, under Commonwealth law, or the law in force in a State in which the child is present, have authority to consent to.
State includes the Australian Capital Territory and the Northern Territory.
State central authority has the meaning given by regulation 7.
State court means a court exercising jurisdiction under a law mentioned in Schedule 2.
State measure means a protection measure taken by an authority of a State.
Division Division 3 - Family Law (Child Protection Convention) Regulations 2003 - Variation or cancellation by State court | Zoe
(2) A word or expression defined for Division 4 of Part XIIIAA of the Act has the same meaning when used in these Regulations as it has for that Division.
Note 1: Words and expressions to which subregulation (2) apply include:
another country
Australia
central authority (of a convention country)
Child Protection Convention
competent authority
Commonwealth central authority
Convention country
foreign measure
non‑Convention country.
Note 2: Several other words or expressions used in these Regulations have the meaning given by subsection 4(1) of the Act. For example:
applicant
court
Note 3: Under subsection 111CA(2) of the Act, unless the contrary intention appears, expressions used in the Child Protection Convention have, in these Regulations, the meaning they have in the Convention.
Part 2—Comparable State law
4 Application of Regulations
A provision of Part 6, 7 or 8 of these Regulations does not apply to a State in which there is in force a law having the same effect as, or comparable effect to, that which the provision would, except for this regulation, have for the State.
Part 3—Commonwealth and State central authorities
Note: Subregulation 3(2) provides that a word or expression defined for Division 4 of Part XIIIAA of the Act has the same meaning when used in these Regulations, including Commonwealth central authority.
5 Functions etc of Commonwealth central authority
(1) The functions of the Commonwealth central authority are to do, or to coordinate the doing of, anything that is necessary:
(a) to enable the performance of Australia’s obligations under the Child Protection Convention; and
(b) to obtain for Australia any advantage or benefit under the Child Protection Convention.
(2) The Commonwealth central authority:
(a) has all of the duties of a central authority under the Child Protection Convention; and
(b) may exercise all of the powers of a central authority under the Child Protection Convention.
(3) If the exercise by the Commonwealth central authority of one of its functions (the Commonwealth function) would affect the exercise of a function of a State central authority, the Commonwealth central authority must consult the State central authority about the exercise of the Commonwealth function before it is exercised.
6 Notice of designation of Commonwealth central authority
As soon as practicable after the commencement of these Regulations, the Commonwealth central authority must tell the Bureau, in writing, the Commonwealth central authority’s name, address and functions.
7 State central authorities
(1) A State central authority for a State is a person:
(a) so designated by the State (if it has the capacity to do so) and notified under subregulation 9(1) to the Commonwealth central authority; or
(b) if a person is not designated under paragraph (a)—so designated by the Commonwealth, under regulation 8.
(2) A State central authority designated under paragraph 8(2)(b) ceases to be a State central authority under that regulation if the State concerned:
(a) designates a State central authority for the State; and
(b) informs the Commonwealth central authority of the designation under subregulation 9(1).
8 State central authorities—designation by Commonwealth
(1) The Attorney‑General of the Commonwealth may designate a person, in writing, as a State central authority of a State for the purpose of these Regulations.
(2) A person designated must be:
(a) the State Minister administering the laws of that State relating to the care and protection of children; or
(b) a person holding, or for the time being performing the duties of, an office, in the department or service responsible for the administration of the care and protection of children in the State, that supervises the conduct of that care and protection.
(3) A designation may be expressed to have effect only in the circumstances mentioned in the instrument of designation.
(4) As soon as practicable after the Attorney‑General designates a State central authority, the Attorney‑General must publish a notice of the designation in the Gazette.
(5) In this regulation, State Minister means a Minister of the Crown for the State.
9 Notice of designation of State central authority
(1) As soon as practicable after a State designates a State central authority, the State must tell the Commonwealth central authority, in writing, the name, address and functions of the State central authority.
(2) As soon as practicable after a change to the name, address or functions of a State central authority, the State concerned must tell the Commonwealth central authority, in writing, about the change.
(3) As soon as practicable after the Commonwealth central authority is given information under subregulation (1) or (2), it must give the Bureau the same information, in writing.
(4) As soon as practicable after the Commonwealth central authority is told about a designation under subregulation (1), it must also publish a notice of the designation in the Gazette.
(5) If a State to which subregulation (1) or (2) does not apply gives the Commonwealth central authority information of a kind mentioned in the subregulation, the Commonwealth central authority must comply with subregulations (3) and (4) as if the information were given under the subregulation.
Note: Subregulation (4) affects the operation of subregulations 9(1) and (2) in relation to certain States.
Part 4—Commonwealth protection measure
10 Overseas recognition of a Commonwealth protection measure
(1) The relevant Registrar of a court may, on application by an interested person, send to the Commonwealth central authority for transmission to a central authority of a Convention country:
(a) a certified copy of an order that is a protection measure taken under the Act; and
(b) any information held by the court relating to the whereabouts of the child concerned; and
(c) a request, in writing, that the order be recognised in the Convention country.
(2) Documents received by the Commonwealth central authority under subregulation (1) must be sent to a central authority of the Convention country.
(3) Nothing in this regulation prevents an interested person from obtaining, and sending to a central authority of a Convention country, or a competent authority of a Convention country or a non‑Convention country, copies of the documents and information mentioned in paragraphs (1)(a) and (b) with a request for recognition of the order.
Part 5—Foreign measures—receipt by Commonwealth
Division 1—Registration and implementation
11 Foreign measures received by Commonwealth central authority
On receiving a document that is a foreign measure, the Commonwealth central authority may:
(a) send the document to a State central authority to be dealt with in accordance with the Child Protection Convention (or a comparable law of the State); or
(b) send the document to a relevant Registrar of the Federal Circuit and Family Court of Australia, the Family Court of Western Australia or the Supreme Court of the Northern Territory to be dealt with in accordance with regulation 12.
12 Court recognition of a foreign measure
(1) Subject to regulation 13, on receipt (under regulation 11 or with an application by an interested person) of a document that is a foreign measure, the relevant Registrar of a court may register the foreign measure by:
(a) filing in the court a copy of the document; and
(b) noting the fact and date of registration on the copy.
(2) A foreign measure so registered (a recognised foreign measure):
(a) has the same effect as a Commonwealth measure in the same terms; and
(b) may, on application by the relevant Registrar of a court or a person interested in the measure (including the child who is the subject of the measure), be registered concurrently in any other court having jurisdiction under the Act.
(3) A certificate by a court that the foreign measure has been registered in that court under this regulation is sufficient evidence to enable a concurrent registration to be made.
(4) To enforce a recognised foreign measure, an interested person may take legal proceedings in any court that has jurisdiction.
Note 1: Section 111CT of the Act sets out the effect of registered foreign measures.
Note 2: For subregulation (4)—jurisdiction is conferred by section 39 of the Act.
13 Measure relating to special medical treatment
(1) This regulation applies to a foreign measure that relates to special medical treatment of a child.
(2) A relevant Registrar of a court who is aware that a foreign measure relates to special medical treatment must not register the measure unless the Federal Circuit and Family Court of Australia, or another authorised court or tribunal, having regard to the child’s best interests, has:
(a) authorised the medical treatment; or
(b) declared that registration is not contrary to public policy.
(3) In the absence of such an authorisation or declaration:
(a) registration of the measure in a court is of no effect; and
(b) if registration has occurred, a relevant Registrar of the court, on becoming aware that the measure relates to special medical treatment, must:
(i) cancel the registration; and
(ii) notify the Commonwealth central authority.
(4) On receipt of notification under subparagraph (3)(b)(ii), the Commonwealth central authority must notify the State central authority of the State in which the child is present.
(5) For this regulation:
authorised court or tribunal means a court or tribunal that, under the law in force in the State in which the child concerned is present, has jurisdiction to authorise the special medical treatment of the child.
14 Measure relating to protection from abuse
(1) This regulation applies to proceedings under regulation 15 or proceedings under Part VII of the Act that are affected by a recognised foreign measure.
(2) If the court becomes aware that the foreign measure relates to the taking, by a competent authority in a Convention country, of a measure that, in relation to the child concerned:
(a) is for the protection of the person of the child from abuse (within the meaning of subsection 60D(1) of the Act); and
(b) in its implementation, would involve action by a competent authority in Australia or in another country;
the court may require the relevant Registrar of the court to so inform, in writing, the State central authority of the State in which the child is present.
(3) If, within 7 days after receiving notice under subregulation (2), the State central authority gives the court written notice that a competent authority in the State will:
(a) take a measure of protection in relation to the child; or
(b) initiate proceedings in a court in relation to the child;
the court must suspend the proceedings before it and cancel the registration of the measure.
(4) Despite subregulation (3), if it appears to the court that it is in the child’s best interests to so do, the court may make interim orders in relation to the child.
Division 2—Variation or cancellation
15 Application for variation or cancellation by court
(1) On the application of an interested person, a court may make an order:
(a) varying the application of a recognised foreign measure; or
(b) cancelling the registration of a recognised foreign measure relating to a child.
(2) An order may be made only if:
(a) the competent authority in the Convention country in which the foreign measure was taken did not have jurisdiction in accordance with the Child Protection Convention to take the measure; or
(b) in taking the measure, the competent authority in the Convention country is taken to have acted contrary to fundamental principles of procedure under Australian law; or
(c) the registration, or enforcement, of the measure in Australia is contrary to public policy, taking into account the best interests of the child concerned; or
(d) the court has jurisdiction under the Act to take a measure of protection for the child in accordance with Division 4 of Part XIIIAA of the Act.
(3) For paragraph (2)(b), a competent authority in a Convention country is taken to have acted contrary to fundamental principles of procedure under Australian law if it:
(a) did not give the child, or a person with parental responsibility for the child, an opportunity to be heard before the foreign measure was taken; and
(b) did not take the measure as a matter of urgency.
(4) For paragraph (2)(c), it is a relevant consideration that a court, in proceedings under the Family Law (Child Abduction Convention) Regulations 1986, has previously refused to order the return of the child from Australia to his or her country of habitual residence.
16 Matters relevant in proceedings relating to a foreign measure
(1) This regulation applies to proceedings affecting, or involving, a foreign measure.
(2) The court is bound by findings of fact on which the competent authority, in the Convention country in which the foreign measure was taken, based its jurisdiction.
(3) Subject to regulation 15, the court must not review the merits of the foreign measure.
(4) Any document relating to the foreign measure that is provided by a competent authority in a Convention country is admissible as evidence of any facts stated in the document.
(5) An affidavit relating to the foreign measure that is made by a witness who resides outside Australia, if filed in the proceedings, is admissible as evidence even though the witness does not attend the proceedings for cross‑examination.
17 Notification of competent authority in Convention country
When a court varies or cancels a foreign measure under this Division, the relevant Registrar of the court must send to the competent authority in the Convention country in which the measure was taken:
(a) 3 certified copies of the order varying or cancelling the measure; and
(b) a copy of any judgment, decision or statement of reasons given by the court in relation to the order; and
(c) a copy of the depositions in the proceedings; and
(d) such further material, if any, as the court considers appropriate.
18 Request to foreign competent authority to vary or cancel a measure
On the application of an interested person, the Commonwealth central authority may assist the person by sending a request to the appropriate competent authority in the Convention country in which a foreign measure was taken to vary, or cancel, the measure.
Part 6—International cooperation
19 Certificate by relevant Registrar—parental responsibility
(1) On application by an individual, for Article 40 of the Convention, the relevant Registrar of a court may issue a certificate stating:
(a) that the individual has parental responsibility for a child; and
(b) whether the individual’s parental responsibility arises from section 61C of the Act or from a parenting order made by a court; and
(c) the effect that any parenting order has on the individual’s parental responsibility under section 61D of the Act.
(2) A certificate issued under subregulation (1) must include a copy of section 61B of the Act.
Note: Section 61B of the Act sets out the meaning of parental responsibility.
(3) The relevant Registrar may, if he or she considers it appropriate, include such other information or material that describes the capacity in which the individual is entitled to act, and the powers of the person, in relation to the child.
20 Effect of certificate
(1) For Article 40 of the Convention, a certificate has effect under this regulation when issued by a central authority or competent authority of a Convention country other than Australia, being the country:
(a) of the child’s habitual residence; or
(b) where a measure of protection was taken for the child.
(2) A certificate that has effect under this regulation is presumed, in proceedings under the Act, to establish any of the following matters stated in the certificate:
(a) that a person is entitled to act in a capacity in relation to a child;
(b) that a person has certain powers in relation to a child.
(3) Any matter presumed to be established by subregulation (2) is rebuttable by evidence on the balance of probabilities.
Part 7—Implementation of the Convention in State matters
Division 1—Application of the Convention and jurisdiction of State courts
21 Provisions of Convention to have effect in each State
(1) Subject to regulation 4, the provisions of the Convention have effect in each State as a law of that State.
(2) Subregulation (1) applies to a State despite any inconsistent provision of the common law in force in the State or a law mentioned in Schedule 2.
22 State court to have jurisdiction
A State court may exercise jurisdiction in a matter for a request or an invitation made under Article 8 or 9 of the Convention, or in a matter arising under regulation 26.
23 State court may make rules
(1) A State court may make rules for the practice and procedure to be followed in proceedings under this Part.
(2) Subject to any rules made under subregulation (1), the forms prescribed by regulation 30 are to be used in the proceedings.
Division 2—Foreign measures—receipt by State
24 Foreign measures received by State central authority
On receiving a document that is a foreign measure, a State central authority may:
(a) deal with the measure in accordance with the Child Protection Convention; or
(b) send the document to a relevant Registrar of a State court to be dealt with in accordance with regulation 25.
25 State court recognition of a foreign measure
(1) On receipt of a document that is a foreign measure, the relevant Registrar of a State court may register the foreign measure by:
(a) filing in the court a copy of the document; and
(b) noting the fact and date of registration on the copy.
(2) A foreign measure so registered (a recognised foreign measure):
(a) has the same effect as a State measure, in the same terms; and
(b) may, on application by the relevant Registrar of a court or a person interested in the measure (including the child who is the subject of the measure), be registered concurrently in any other State court in that State.
(3) A certificate by a court that the foreign measure has been registered in that court under this regulation is sufficient evidence to enable a concurrent registration to be made.
(4) To enforce a recognised foreign measure, an interested person may take legal proceedings in any State court in which the measure is registered.
Division 3—Variation or cancellation by State court
26 Application for variation or cancellation by State court
(1) On the application of an interested person, a State court may make an order:
(a) varying the application of a recognised foreign measure; or
(b) cancelling the registration of a recognised foreign measure relating to a child.
(2) An order may be made only if:
(a) the competent authority in the Convention country in which the foreign measure was taken did not have jurisdiction in accordance with the Child Protection Convention to take the measure; or
(b) in taking the measure, the competent authority in the Convention country is taken to have acted contrary to fundamental principles of procedure under Australian law; or
(c) the registration, or enforcement, of the measure in Australia is contrary to public policy, taking into account the best interests of the child concerned; or
(d) the State court has jurisdiction under the Convention to take a measure of protection for the child.
(3) For paragraph (2)(b), a competent authority in a Convention country is taken to have acted contrary to fundamental principles of procedure under Australian law if it:
(a) did not give the child, or a person with parental responsibility for the child, an opportunity to be heard before the foreign measure was taken; and
(b) did not take the measure as a matter of urgency.
27 Matters relevant in proceedings relating to a foreign measure
(1) This regulation applies to proceedings affecting, or involving, a foreign measure.
(2) The State court is bound by findings of fact on which the competent authority, in the Convention country in which the foreign measure was taken, based its jurisdiction.
(3) Subject to regulation 26, the State court must not review the merits of the foreign measure.
(4) Any document relating to the foreign measure that is provided by a competent authority in a Convention country is admissible as evidence of any facts stated in the document.
(5) An affidavit relating to the foreign measure that is made by a witness who resides outside Australia, if filed in the proceedings, is admissible as evidence even though the witness does not attend the proceedings for cross‑examination.
28 Notification of competent authority in Convention country
When a State court varies or cancels a foreign measure under this Division, the relevant Registrar of the court must send to the competent authority in the Convention country in which the measure was taken:
(a) 3 certified copies of the order varying or cancelling the measure; and
(b) a copy of any judgment, decision or statement of reasons given by the court in relation to the order; and
(c) a copy of the depositions in the proceedings; and
(d) such further material, if any, as the court considers appropriate.
29 Request to foreign competent authority to vary or cancel a measure
On the application of an interested person, the State central authority may assist the person by sending a request to the appropriate competent authority in the Convention country in which a foreign measure was taken to vary, or cancel, the measure.
Part 8—Miscellaneous
30 Filing or issuing of documents—forms
A document filed in or issued from a court in proceedings under section 111CN or 111CW of the Act, or regulation 15 or 26, must contain a heading in accordance with Form 1 and be in the following form:
(a) for an affidavit—Form 2;
(b) for an application for an order—Form 3;
(c) for a notice of an application for an order—Form 4;
(d) for a response to an application for an order—Form 5;
(e) for a reply in response to an application for an order—Form 6.