Family Law (Hague Convention on Intercountry Adoption) Regulations 1998
In ForceCTH
Jurisdiction
Commonwealth
Act Number
249 of 1998
Collection
legislative instrument
Plain English Summary
6/10 complexity
These Regulations implement the 1993 Hague Convention on intercountry adoption in Australia: they designate Commonwealth and State Central Authorities, set the Commonwealth Authority’s coordinating limits, prescribe court procedures and standard forms for making or recognising adoption orders, and require accreditation and reporting between State, Commonwealth and the Hague Bureau. They affect prospective adoptive parents, accredited bodies, courts and government agencies by standardising safeguards and recognition rules, creating administrative duties and short response windows, and allowing State variation and limited non‑recognition on public‑policy grounds.
The Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 give domestic effect to the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption (set out in full in Schedule 1). The instrument establishes a cooperative framework between Australia and other Convention countries to ensure intercountry adoptions occur only where they serve the child's best interests, with proper safeguards, consents and oversight.
At its core the Regulations designate and empower Central Authorities. Regulation 5 designates the Secretary to the Department as the Commonwealth Central Authority for article 6 of the Convention, responsible for receiving communications from overseas and coordinating Australia's obligations. Regulation 6 enumerates its functions in detail: cooperating with overseas Central Authorities, consulting State Central Authorities, preparing legislation where needed to meet obligations, addressing reported breaches or risks of breaches, and consulting on intercountry adoption matters. Importantly, reg 6(3) carves out day-to-day casework, approval of specific applications, consent to adoptions, functions reserved to States under the Commonwealth-State agreement, and accreditation of bodies. Regulation 6(5) confirms the Commonwealth Central Authority holds all duties and powers of a Central Authority under the Convention (subject to the carve-outs). Regulations 7–13 then deal with notification obligations to the Permanent Bureau of the Hague Conference and the mechanics of designating and notifying State Central Authorities and accredited bodies. Regulation 11 expressly provides that a State Central Authority is taken to have carried out a function if an accredited body does so.
Part 4 is the operational heart of the instrument. It creates pathways for court involvement in two directions. Regulation 14 governs adoption of an Australian child (habitually resident in Australia) by persons habitually resident in a Convention country. An application must be made to a court using Form 3 supported by a Form 2 affidavit; the State Central Authority must be served and must notify interested persons using Form 4. Interested persons may file a Form 5 response within five working days before the hearing, to which a Form 6 reply may be filed. The court may make a Form 7 order only if satisfied that both the relevant Central Authority and the State Central Authority have agreed and that the adoption is in the child's best interests (determined under s 68F of the Family Law Act 1975). The order cannot be made if the child is not in Australia or is prevented from leaving.
Current sections
Direct links to the current provisions in Family Law (Hague Convention on Intercountry Adoption) Regulations 1998.
56
Part 1
Preliminary
Part 1—Preliminary
1
Name of Regulations
1 Name of Regulations
These Regulations are the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998.
2
Authority
2 Authority
These Regulations are made under the Family Law Act 1975.
3
Definitions
3 Definitions
Note: A number of expressions used in these Regulations are defined in the Act, including the following:
(a) court;
(b) Territory.
(1) In these Regulations:
accredited body means a body accredited, under the laws of a State and in accordance with the Commonwealth‑State agreement, as an accredited body for the Convention.
Act means the Family Law Act 1975.
adoption compliance certificate means a certificate issued in accordance with article 23 of the Convention.
Bureau means the Permanent Bureau of the Hague Conference on Private International Law.
Central Authority means a person or office designated for a Convention country under article 6 of the Convention.
child means an individual who is under 18 years.
Commonwealth Central Authority has the meaning given by regulation 5.
Commonwealth‑State agreement means the “Commonwealth‑State agreement for the implementation of the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption”:
(a) made between the Commonwealth and the States and Territories; and
(b) that commenced operation on 9 April 1998.
Convention means the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption:
(a) mentioned in subsection 111C(1) of the Act; and
(b) a copy of the English text of which is set out in Schedule 1.
Convention country has the meaning given by regulation 4.
parental responsibility, in relation to a child, has the same meaning as in section 61B of the Act.
receiving State has the same meaning as in article 2 of the Convention.
State includes Territory.
State Central Authority has the meaning given by regulation 8.
State of origin has the same meaning as in article 2 of the Convention.
working day means a day that is not a Saturday, Sunday or public holiday.
(2) A reference in these Regulations to a form by number is a reference to the form so numbered in Schedule 3.
3A
Headings of certain documents
3A Headings of certain documents
A document to be filed in, or issued out of, a court in proceedings that is in a form set out in Schedule 3:
(a) must be headed in accordance with Form 1; and
(b) may identify the proceedings in accordance with the rules of the court.
4
Convention countries
4 Convention countries
Subject to article 45 of the Convention, each of the following countries is a Convention country:
(a) a country mentioned in Schedule 2, on and from the date mentioned in relation to the country;
(b) any other country for which the Convention has entered into force, other than:
(i) Australia; and
(ii) a country against whose accession Australia has raised an objection under article 44 of the Convention.
Part 2
Commonwealth and State Central Authorities
Part 2—Commonwealth and State Central Authorities
5
Commonwealth Central Authority
5 Commonwealth Central Authority
For article 6 of the Convention, the Secretary to the Department is designated:
(a) the Commonwealth Central Authority; and
(b) the Central Authority to which communication from a country other than Australia may be addressed.
6
Functions etc of Commonwealth Central Authority
6 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 Convention; or
(b) to obtain for Australia any advantage or benefit under the Convention.
(2) For subregulation (1), the functions of the Commonwealth Central Authority include the following:
(a) cooperating with Central Authorities outside Australia on matters relating to the administration and implementation of the Convention;
(b) consulting State Central Authorities to get information for determining whether Australia is meeting its obligations under the Convention;
(c) to the extent that the legislation and administrative practices of States do not ensure that Australia meets its obligations under the Convention—preparing legislation to ensure that Australia meets those obligations;
(d) receiving advice from a State Central Authority that a provision of the Convention has not been respected in the State, and ensuring with the State Central Authority that appropriate measures are taken to ensure compliance with the provision;
(e) receiving advice from a State Central Authority that there is a serious risk that a provision of the Convention may not be respected in the State, and ensuring with the State Central Authority that appropriate measures are taken to ensure compliance with the provision;
(f) consulting State Central Authorities on matters relating to intercountry adoption.
(3) However, the functions of the Commonwealth Central Authority do not include the following:
(a) processing the day‑to‑day casework involved in a particular adoption;
(b) approving an application for the adoption of a child;
(c) giving consent to the adoption of a child;
(d) a function reserved, under the Commonwealth‑State agreement, for a State or State Central Authority;
(e) accrediting a body for the Convention.
(4) The functions of the Commonwealth Central Authority under this regulation are additional to its other functions under these Regulations.
(5) Subject to subregulation (3), the Commonwealth Central Authority:
(a) has all of the duties of a Central Authority under the Convention; and
(b) may exercise all of the powers of a Central Authority under the Convention.
(6) 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.
7
Notice of designation of Commonwealth Central Authority
7 Notice of designation of Commonwealth Central Authority
(1) 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.
(2) As soon as practicable after a change to the name, address or functions of the Commonwealth Central Authority, the Commonwealth Central Authority must tell the Bureau, in writing, about the change.
8
State Central Authorities
8 State Central Authorities
(1) The State Central Authority for a State is the person:
(a) so designated by the State (if it has the capacity to do so) and notified to the Commonwealth Central Authority under subregulation 10(1); or
(b) if a person is not designated under paragraph (a)—so designated by the Commonwealth, under regulation 9.
(2) A State Central Authority designated under regulation 9 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) tells the Commonwealth Central Authority about the designation under subregulation 10(1).
9
State Central Authorities—designation by Commonwealth
9 State Central Authorities—designation by Commonwealth
(1) The Attorney‑General of the Commonwealth may designate a person, in writing, as State Central Authority of a State for these Regulations.
(2) A person designated must be:
(a) the State Minister administering the laws of that State relating to adoptions; or
(b) a person holding, or for the time being performing the duties of, the office, in the department or service responsible for the administration of adoptions in the State, that supervises the conduct of those adoptions.
(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) for a State—a Minister of the Crown for the State; and
(b) for a Territory—a Minister of the Crown for the Territory.
Note: Subregulations 9(1) and (2) do not necessarily apply to all States—see regulation 34.
10
Notice of designation of State Central Authority
10 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 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: Subregulations 10(1) and (2) do not necessarily apply to all States—see regulation 34.
11
State Central Authorities and accredited bodies
11 State Central Authorities and accredited bodies
For these Regulations, a State Central Authority of a State is taken to have carried out a function if the function is carried out by an accredited body of the State.
Part 3
Accredited bodies
Part 3—Accredited bodies
12
Notice of accreditation
12 Notice of accreditation
(1) As soon as practicable after a State Central Authority accredits a body, the State Central Authority must tell the Commonwealth Central Authority, in writing:
(a) the name, address, duties and powers of the accredited body; and
(b) the conditions of the accreditation.
(2) As soon as practicable after a change to the name, address, duties or powers of an accredited body, the State Central Authority that accredited the body must tell the Commonwealth Central Authority, in writing, about the change.
(3) As soon as practicable after a change to the conditions of an accreditation, the State Central Authority that accredited the body must tell the Commonwealth Central Authority, in writing, about the change.
(4) As soon as practicable after the Commonwealth Central Authority is given information under subregulation (1), (2) or (3), it must give the Bureau the information, in writing.
(5) As soon as practicable after the Commonwealth Central Authority is told about an accreditation, it must also publish a notice of the accreditation in the Gazette.
(6) If a State to which subregulation (1), (2) or (3) does not apply gives the Commonwealth Central Authority information of a kind mentioned in the subregulation, the Commonwealth Central Authority must comply with subregulations (4) and (5) as if the information were given under the subregulation.
Note: Subregulations 12(1), (2) and (3) do not necessarily apply to all States—see regulation 34.
13
Notice of revocation
13 Notice of revocation
(1) As soon as practicable after a State Central Authority revokes the accreditation of a body, the State Central Authority must tell the Commonwealth Central Authority, in writing, about the revocation.
(2) As soon as practicable after the Commonwealth Central Authority is given information under subregulation (1):
(a) it must give the Bureau the information, in writing; and
(b) it must publish a notice of the revocation in the Gazette.
(3) If a State to which subregulation (1) does not apply gives the Commonwealth Central Authority information of a kind mentioned in the subregulation, the Commonwealth Central Authority must comply with subregulation (2) as if the information were given under subregulation (1).
Note: Subregulation 13(1) does not necessarily apply to all States—see regulation 34.
Part 4
Court orders and recognition of adoption
Part 4—Court orders and recognition of adoption
14
Adoption of Australian child into a Convention country
14 Adoption of Australian child into a Convention country
(1) This regulation applies if arrangements for the adoption of a child, who is habitually resident in Australia, by a person who is, or persons who are, habitually resident in a Convention country, are made in accordance with:
(a) the Convention; and
(b) the laws of the Commonwealth and the State in which the child is habitually resident; and
(c) the laws of the Convention country.
(2) The person or persons proposing to adopt the child must apply to a court for an order that the child be adopted by the person or persons.
(2A) The application must:
(a) be in accordance with Form 3; and
(b) include an affidavit in accordance with Form 2.
(2B) At the same time as the application is made, the applicant, or applicants, must give a copy of the application to the State Central Authority for the State where the child who is the subject of the application habitually resides.
(2C) As soon as practicable, the State Central Authority must give notice, in accordance with Form 4, of the application to any person of whom the Authority is aware as having an interest in whether the application is granted.
(2D) A person to whom the notice is given:
(a) no later than 5 working days before the court hearing, may file with the court a statement in accordance with Form 5 that sets out briefly the matters on which the person wishes to rely in support of the court making an order other than the order sought in the application; and
(b) must include with that statement an affidavit in accordance with Form 2.
(2E) As soon as practicable before the court hearing, the applicant, or applicants, may file with the court a reply to a statement filed under subregulation (2D), being a reply that:
(a) is in accordance with Form 6; and
(b) includes an affidavit in accordance with Form 2.
(2F) An order made by the court must be in accordance with Form 7.
(3) The court may make the order only if it is satisfied that:
(a) the Central Authority of the Convention country has agreed to the adoption of the child; and
(b) the State Central Authority of the State in which the child habitually resides has agreed to the adoption of the child; and
(c) the adoption is in the best interests of the child.
(4) However, the court must not make the order if:
(a) the child is not in Australia; or
(b) the child is not allowed to leave Australia:
(i) under a law of the Commonwealth or a State; or
(ii) because of an order of a court of the Commonwealth or a State.
(5) The best interests of a child must be determined in accordance with section 68F of the Act.
Note: This regulation does not necessarily apply to all States—see regulation 34.
15
Adoption in Australia of a child from a Convention country
15 Adoption in Australia of a child from a Convention country
(1) This regulation applies in relation to an adoption that is to be granted in Australia, of a child who is habitually resident in a Convention country, by a person who is, or persons who are, habitually resident in Australia, if arrangements for the adoption are made in accordance with:
(a) the Convention; and
(b) the laws of the Commonwealth and the State of habitual residence of the person or persons proposing to adopt the child; and
(c) the laws of the Convention country.
(2) The person or persons proposing to adopt the child must apply to a court for an order that the child be adopted by the person or persons.
(2A) The application must:
(a) be in accordance with Form 3; and
(b) include an affidavit in accordance with Form 2.
(2B) At the same time as the application is made, the applicant, or applicants, must give a copy of the application to the State Central Authority for the State:
(a) if the application is made by 1 applicant—where the applicant habitually resides; or
(b) if the application is made by more than 1 applicant—where the applicants habitually reside.
(2C) The State Central Authority:
(a) no later than 5 working days before the court hearing, may file with the court a statement in accordance with Form 5 that sets out briefly the matters on which the Authority wishes to rely in support of the court making an order other than the order sought in the application; and
(b) must include with that statement an affidavit in accordance with Form 2.
(2D) As soon as practicable before the court hearing, the applicant, or applicants, may file with the court a reply to a statement filed under subregulation (2C), being a reply that:
(a) is in accordance with Form 6; and
(b) includes an affidavit in accordance with Form 2.
(2E) An order made by the court must be in accordance with Form 8.
(3) The court may make the order only if it is satisfied that:
(a) the Central Authority of the Convention country has agreed to the adoption of the child; and
(b) the State Central Authority of the State in which the applicant or applicants habitually reside has agreed to the adoption of the child; and
(c) the child is allowed to reside permanently in Australia.
(4) However, the court must not make the order if the child is not in Australia.
(5) For paragraph (3)(c), a child is not allowed to reside permanently in Australia if the child is affected by a law of the Commonwealth, or of a State, or by an order of a Commonwealth or State court, the effect of which is to prevent the child from so residing.
Note 1: This regulation does not necessarily apply to all States—see regulation 34.
Note 2: If a child to whom an application relates enters Australia before the application is determined, the child may be subject, while the application is being considered, to the Immigration (Guardianship of Children) Act 1946. Legislation of the State in which an application is made may also have consequences for the child concerned.
16
Adoption of a child from a Convention country to Australia
16 Adoption of a child from a Convention country to Australia
(1) This regulation applies if:
(a) an adoption, by a person who is habitually resident in Australia, of a child who is habitually resident in a Convention country is granted in that country; and
(b) an adoption compliance certificate issued in that country is in force for the adoption.
(2) Subject to regulation 22, the adoption is recognised and effective, for the laws of the Commonwealth and each State, on and from the day the certificate becomes effective.
Note: This regulation does not necessarily apply to all States—see regulation 34.
17
Adoption of a child from a Convention country to another Convention country
17 Adoption of a child from a Convention country to another Convention country
(1) This regulation applies if:
(a) a child, who is habitually resident in a Convention country, is adopted by a person who is habitually resident in another Convention country; and
(b) an adoption compliance certificate issued in the Convention country in which the adoption is granted is in force for the adoption.
(2) Subject to regulation 22, the adoption is recognised and effective, for the laws of the Commonwealth and each State, on and from the day the certificate becomes effective.
18
Effect of recognition of an adoption
18 Effect of recognition of an adoption
Recognition of the adoption of a child includes, for the laws of the Commonwealth and each State, recognition that under those laws:
(a) the relationship between the child and each of the child’s adoptive parents is the relationship of child and parent; and
(b) each adoptive parent of the child has parental responsibility for the child; and
(c) if the laws of the Convention country where the adoption was granted provide that the adoption of the child terminates the legal relationship between the child and the individuals who were, immediately before the adoption, the child’s parents—the relationship is terminated; and
(d) the child has the same rights as a child who is adopted under the laws of a State.
19
Evidential value of adoption compliance certificate
19 Evidential value of adoption compliance certificate
Subject to regulation 22, an adoption compliance certificate is evidence, for the laws of the Commonwealth and each State, that the adoption to which the certificate relates:
(a) was agreed to by the Central Authorities of the countries mentioned in the certificate; and
(b) was carried out in accordance with the Convention and the laws of the countries mentioned in the certificate.
20
Order terminating legal relationship between child and parents
20 Order terminating legal relationship between child and parents
(1) This regulation applies if:
(a) an adoption, by a person who is habitually resident in Australia, of a child who is habitually resident in a Convention country is granted in that country; and
(b) the laws of the Convention country do not provide that the adoption of the child terminates the legal relationship between the child and the individuals who were, immediately before the adoption, the child’s parents (the pre‑adoption parents).
(2) The person may apply to a court for an order that the adoption of the child terminates the legal relationship between the child and the pre‑adoption parents.
(2A) The application must:
(a) be in accordance with Form 3; and
(b) include an affidavit in accordance with Form 2.
(2B) At the same time as the application is made, the applicant, or applicants, must give a copy of the application to the State Central Authority for the State:
(a) if the application is made by 1 applicant—where the applicant habitually resides; or
(b) if the application is made by more than 1 applicant—where the applicants habitually reside.
(2C) As soon as practicable, the State Central Authority must give notice, in accordance with Form 4, of the application to the Minister for Immigration and Multicultural Affairs at the principal office of the Department of Immigration and Multicultural Affairs in Canberra.
(2D) The Minister for Immigration and Multicultural Affairs:
(a) no later than 5 working days before the court hearing, may file with the court a statement in accordance with Form 5 that sets out briefly the matters on which the Minister wishes to rely in support of the court making an order other than the order sought in the application; and
(b) must include with that statement an affidavit in accordance with Form 2.
(2E) As soon as practicable before the court hearing, the applicant, or applicants may file with the court a reply to a statement filed under subregulation (2D), being a reply that:
(a) is in accordance with Form 6; and
(b) includes an affidavit in accordance with Form 2.
(2F) An order made by the court must be in accordance with Form 9.
(3) The court may make the order only if it is satisfied that:
(a) an adoption compliance certificate issued in the Convention country is in force for the adoption; and
(b) the laws of the Convention country do not provide that the adoption of a child terminates the legal relationship between the child and the pre‑adoption parents; and
(c) the child is allowed:
(i) to enter Australia; and
(ii) to reside permanently in Australia.
(4) For paragraph (3)(c), a child is not allowed to enter, or reside permanently in, Australia if the child is affected by a law of the Commonwealth, or of a State, or by an order of a Commonwealth or State court, the effect of which is to prevent the child from so entering or residing.
Note: This regulation does not necessarily apply to all States—see regulation 34.
21
Decision in a Convention country to convert an adoption
21 Decision in a Convention country to convert an adoption
(1) Subject to regulation 22, if a decision is made in a Convention country to convert the adoption of a child, in accordance with article 27 of the Convention, the decision is recognised and effective, for the laws of the Commonwealth and each State, on and from the day the decision becomes effective.
(2) Recognition of the decision includes, for the laws of the Commonwealth and each State, recognition that under those laws, the decision terminates the legal relationship between the child and the individuals who were, immediately before the adoption, the child’s parents.
22
Refusal to recognise an adoption or an article 27 decision
22 Refusal to recognise an adoption or an article 27 decision
(1) This regulation applies if a State Central Authority considers that an adoption, or a decision made in accordance with article 27 of the Convention, is manifestly contrary to public policy, taking into account the best interests of the child to whom the adoption or decision relates.
(2) The State Central Authority may apply to a court for a declaration that the adoption or decision is not recognised.
(2A) The application must:
(a) be in accordance with Form 3; and
(b) include an affidavit in accordance with Form 2.
(2B) At the same time as the application is made, the State Central Authority must give notice, in accordance with Form 4, of the application to:
(a) the adoptive parents, or adoptive parent, of the child to whom the adoption or decision relates; and
(b) the Minister for Immigration and Multicultural Affairs at the principal office of the Department of Immigration and Multicultural Affairs in Canberra.
(2C) A person to whom notice of the application is given:
(a) no later than 5 working days before the court hearing, may file with the court a statement in accordance with Form 5 that sets out briefly the matters on which the person wishes to rely in support of the court making an order other than the order sought in the application; and
(b) must include with that statement an affidavit in accordance with Form 2.
(2D) As soon as practicable before the court hearing, the State Central Authority may file with the court a reply to a statement filed under subregulation (2C), being a reply that:
(a) is in accordance with Form 6; and
(b) includes an affidavit in accordance with Form 2.
(2E) An order made by the court must be in accordance with Form 10.
(3) If a court declares that it does not recognise the adoption or decision, the adoption or decision (as the case requires) has no effect for the laws of the Commonwealth and each State.
23
Notice of application under regulation 22
23 Notice of application under regulation 22
(1) If a State Central Authority applies to a court for a declaration under regulation 22, the State Central Authority must, as soon as practicable, tell the Commonwealth Central Authority, in writing, about the application and its reasons for making the application.
(2) When the Commonwealth Central Authority is given information under subregulation (1), it must, as soon as practicable:
(a) give the Bureau and the Central Authorities of the State of origin and the receiving State the information, in writing; and
(b) invite those Central Authorities to make submissions to the court about the application.
(3) As soon as practicable after the court has decided the application, the Commonwealth Central Authority must tell the Bureau, in writing, about the decision.
(4) If a State to which subregulation (1) does not apply gives the Commonwealth Central Authority information of a kind mentioned in the subregulation, the Commonwealth Central Authority must comply with subregulations (2) and (3) as if the information were given under subregulation (1).
Note: Subregulation (1) does not necessarily apply to all States—see regulation 34.
Part 5
Jurisdiction of courts
Part 5—Jurisdiction of courts
24
Meaning of arising in a State or Territory
24 Meaning of arising in a State or Territory
For this Part, a matter to which a provision of Part 4 applies arises in a State if the adoptive parents, or prospective adoptive parents, concerned are habitually resident in that State.
24A
Jurisdiction of Federal Circuit and Family Court of Australia (Division 2)
24A Jurisdiction of Federal Circuit and Family Court of Australia (Division 2)
(1) Jurisdiction is conferred on the Federal Circuit and Family Court of Australia (Division 2) in a matter to which a provision of Part 4 applies.
(2) If jurisdiction is invested, in the matter, in a court of a State under a law of the State, the Federal Circuit and Family Court of Australia (Division 2) is divested of jurisdiction in the matter.
(3) Subregulation (2) does not have effect in relation to:
(a) proceedings instituted in the Federal Circuit and Family Court of Australia (Division 2) before the day on which jurisdiction in the matter is invested in the State court; or
(b) proceedings on appeal from a decision of the Court in proceedings mentioned in paragraph (a).
24B Appeals to the Federal Circuit and Family Court of Australia (Division 1)
(1) An appeal may be made to the Federal Circuit and Family Court of Australia (Division 1) from:
(a) a decision of a single judge of the Federal Circuit and Family Court of Australia (Division 1) exercising original jurisdiction; or
(b) a decision of a single judge of the Federal Circuit and Family Court of Australia (Division 1) exercising appellate jurisdiction; or
(c) a decision of the Federal Circuit and Family Court of Australia (Division 2) exercising jurisdiction under subregulation 24A(1).
(2) The appellate jurisdiction of the Federal Circuit and Family Court of Australia (Division 1) is to be exercised:
(a) if the appeal is from a decision of a single judge of the Federal Circuit and Family Court of Australia (Division 1)—by a Full Court of the Federal Circuit and Family Court of Australia (Division 1); or
(b) if the appeal is from a decision of the Federal Circuit and Family Court of Australia (Division 2)—by a single Judge of the Federal Circuit and Family Court of Australia (Division 1) unless the Chief Justice directs that the application be heard and determined by a Full Court.
25
Jurisdiction of courts—New South Wales
25 Jurisdiction of courts—New South Wales
(1) The Supreme Court of New South Wales is invested with federal jurisdiction in matters arising in New South Wales to which a provision of Part 4 applies.
(2) An appeal from a decision of the Supreme Court of New South Wales constituted by a single judge, exercising jurisdiction under subregulation (1), may be made to the Court of Appeal of that Court.
(3) The Court of Appeal of the Supreme Court of New South Wales is invested with federal jurisdiction for appeals instituted under subregulation (2).
26
Jurisdiction of courts—Victoria
26 Jurisdiction of courts—Victoria
(1) The following courts of Victoria are invested with federal jurisdiction in matters arising in Victoria to which a provision of Part 4 applies:
(a) the County Court;
(b) the Supreme Court of Victoria.
(2) An appeal from a decision of the County Court, exercising jurisdiction under subregulation (1), may be made to the Supreme Court of Victoria.
(3) The Supreme Court of Victoria is invested with federal jurisdiction for appeals instituted under subregulation (2).
(4) An appeal from a decision of the Supreme Court of Victoria constituted by a single judge, exercising jurisdiction under subregulation (1) or (3), may be made to the Court of Appeal of that Court.
(5) The Court of Appeal of the Supreme Court of Victoria is invested with federal jurisdiction for appeals instituted under subregulation (4).
27
Jurisdiction of courts—Queensland
27 Jurisdiction of courts—Queensland
(1) The following courts of Queensland are invested with federal jurisdiction in matters arising in Queensland to which a provision of Part 4 applies:
(a) the Children’s Court;
(b) the Supreme Court of Queensland.
(2) An appeal from a decision of the Children’s Court, exercising jurisdiction under subregulation (1), may be made to the Supreme Court of Queensland.
(3) The Supreme Court of Queensland is invested with federal jurisdiction for appeals instituted under subregulation (2).
(4) An appeal from a decision of the Supreme Court of Queensland constituted by a single judge, exercising jurisdiction under subregulation (1) or (3), may be made to the Court of Appeal of that Court.
(5) The Court of Appeal of the Supreme Court of Queensland is invested with federal jurisdiction for appeals instituted under subregulation (4).
28
Jurisdiction of courts—South Australia
28 Jurisdiction of courts—South Australia
(1) The following courts of South Australia are invested with federal jurisdiction in matters arising in South Australia to which a provision of Part 4 applies:
(a) the Youth Court of South Australia;
(b) the Supreme Court of South Australia.
(2) An appeal from a decision of the Youth Court of South Australia, exercising jurisdiction under subregulation (1), may be made to the Supreme Court of South Australia.
(3) The Supreme Court of South Australia is invested with federal jurisdiction for appeals instituted under subregulation (2).
(4) An appeal from a decision of the Supreme Court of South Australia constituted by a single judge, exercising jurisdiction under subregulation (1) or (3), may be made to the Full Court of that Court.
(5) The Full Court of the Supreme Court of South Australia is invested with federal jurisdiction for appeals instituted under subregulation (4).
29
Jurisdiction of Family Court of Western Australia—Western Australia, Christmas Island and Cocos (Keeling) Islands
29 Jurisdiction of Family Court of Western Australia—Western Australia, Christmas Island and Cocos (Keeling) Islands
(1) The Family Court of Western Australia is invested with federal jurisdiction in matters:
(a) arising in Western Australia, the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands; and
(b) to which a provision of Part 4 applies.
(2) An appeal from a decision of the Family Court of Western Australia, exercising jurisdiction under subregulation (1), may be made to the Supreme Court of Western Australia.
(3) The Supreme Court of Western Australia is invested with federal jurisdiction for appeals instituted under subregulation (2).
(4) An appeal from a decision of the Supreme Court of Western Australia constituted by a single judge, exercising jurisdiction under subregulation (3), may be made to the Full Court of that Court.
(5) The Full Court of the Supreme Court of Western Australia is invested with federal jurisdiction for appeals instituted under subregulation (4).
30
Jurisdiction of courts—Tasmania
30 Jurisdiction of courts—Tasmania
(1) The following courts of Tasmania are invested with federal jurisdiction in matters arising in Tasmania to which a provision of Part 4 applies:
(a) a court constituted by a magistrate sitting alone;
(b) the Supreme Court of Tasmania.
(2) An appeal from a decision of a court constituted by a magistrate sitting alone, exercising jurisdiction under subregulation (1), may be made to the Supreme Court of Tasmania.
(3) The Supreme Court of Tasmania is invested with federal jurisdiction for appeals instituted under subregulation (2).
(4) An appeal from a decision of the Supreme Court of Tasmania constituted by a single judge, exercising jurisdiction under subregulation (1) or (3), may be made to the Full Court of that Court.
(5) The Full Court of the Supreme Court of Tasmania is invested with federal jurisdiction for appeals instituted under subregulation (4).
31
Jurisdiction of courts—Australian Capital Territory, Jervis Bay Territory, Heard and McDonald Islands and Australian Antarctic Territory
31 Jurisdiction of courts—Australian Capital Territory, Jervis Bay Territory, Heard and McDonald Islands and Australian Antarctic Territory
(1) Jurisdiction is conferred on the Supreme Court of the Australian Capital Territory in matters:
(a) arising in the Australian Capital Territory, the Jervis Bay Territory, the Territory of Heard and McDonald Islands or the Australian Antarctic Territory; and
(b) to which a provision of Part 4 applies.
(2) An appeal from a decision of the Supreme Court of the Australian Capital Territory constituted by a single judge, exercising jurisdiction under subregulation (1), may be made to the Full Court of the Federal Court of Australia.
(3) Jurisdiction is conferred on the Full Court of the Federal Court of Australia for appeals instituted under subregulation (2).
32
Jurisdiction of courts—Northern Territory and Ashmore and Cartier Islands
32 Jurisdiction of courts—Northern Territory and Ashmore and Cartier Islands
(1) Jurisdiction is conferred on the following courts of the Northern Territory in matters arising in the Northern Territory or the Territory of Ashmore and Cartier Islands to which a provision of Part 4 applies:
(a) the Local Court;
(b) the Supreme Court of the Northern Territory of Australia.
(2) An appeal from a decision of the Local Court, exercising jurisdiction under subregulation (1), may be made to the Supreme Court of the Northern Territory of Australia.
(3) Jurisdiction is conferred on the Supreme Court of the Northern Territory of Australia for appeals instituted under subregulation (2).
(4) An appeal from a decision of the Supreme Court of the Northern Territory of Australia constituted by a single judge, exercising jurisdiction under subregulation (1) or (3), may be made to the Court of Appeal of that Court.
(5) Jurisdiction is conferred on the Court of Appeal of the Supreme Court of the Northern Territory of Australia for appeals instituted under subregulation (4).
33
Jurisdiction of courts—Norfolk Island and the Coral Seas Islands Territory
33 Jurisdiction of courts—Norfolk Island and the Coral Seas Islands Territory
(1) Jurisdiction is conferred on the Court of Petty Sessions of Norfolk Island in matters:
(a) arising on Norfolk Island or in the Coral Seas Islands Territory; and
(b) to which a provision of Part 4 applies.
(2) An appeal from a decision of the Court of Petty Sessions of Norfolk Island, exercising jurisdiction under subregulation (1), may be made to the Supreme Court of Norfolk Island.
(3) Jurisdiction is conferred on the Supreme Court of Norfolk Island for appeals instituted under subregulation (2).
(4) An appeal from a decision of the Supreme Court of Norfolk Island constituted by a single Judge, exercising jurisdiction under subregulation (3), may be made to the Full Court of the Federal Court of Australia.
(5) Jurisdiction is conferred on the Full Court of the Federal Court of Australia for appeals instituted under subregulation (4).
Part 6
Miscellaneous
Part 6—Miscellaneous
34
Application
34 Application
(1) A provision of these Regulations, except Regulations 5, 6, 7, 8, 9, 12 and 13, does not apply to a State in which there is in force a law (an intercountry adoption law) having the same effect as, or comparable effect to, that which the provision would, except for this regulation, have for the State.
(2) Nothing in these Regulations affects:
(a) the jurisdiction of a court of the Commonwealth or a State, or the power of an authority, under an intercountry adoption law to entertain proceedings, make an order or take any other action in relation to an intercountry adoption; or
(b) any such order or action; or
(c) the operation, within a State, of an intercountry adoption law of the State.
Form 1—Heading of documents for use in c
Form 1—Heading of documents for use in court proceedings
Form 1—Heading of documents for use in court proceedings
(regulation 3A)
Family Law (Hague Convention on Intercou
Family Law (Hague Convention on Intercountry Adoption) Regulations 1998
Family Law (Hague Convention on Intercountry Adoption) Regulations 1998
IN THE (insert name of court exercising jurisdiction)
NO. (insert number of proceedings) of (insert year in which document is filed or issued)
DATE OF FILING:*/ISSUE:* (insert date of filing or issue)
IN RELATION TO THE ADOPTION OF (insert forename(s) and surname(s) of child who is the subject of the proceedings) OR (otherwise identify the proceedings in accordance with the rules of the court)
I*/WE*, (insert forename(s) and surname(s) of deponent(s)), (insert occupation(s) of deponent(s)), of (insert address of deponent(s)), declare the following under oath:
(a) I*/We* am*/are* the deponent(s) for this document and have read the document and any attachment to the document; and
(b) the facts stated in the document, and any attachment to the document, that are within my*/our* knowledge are correct; and
(c) all other facts stated in the document, and in any attachment to the document, are correct to the best of my*/our* knowledge or belief.
(paragraphs 14(2D)(a), 15(2C)(a), 20(2D)(a) and 22(2C)(a))
(insert heading for document in accordance with Form 1)
Response to application for order under regulation 14*/15*/20*/22*
IN RESPONSE TO the application made by (insert forename(s) and surname(s) of applicant(s)) filed in the (insert name of court) on (insert date of filing of application), a copy*/notice* of which was given to me*/us* on (insert date on which copy, or notice, of the application was given to respondent(s)), I*/WE*, (insert forename(s) and surname(s) of respondent(s)) state as follows:
(insert brief statement of the matters in support of the court making an order other than the order sought in the application)
(paragraphs 14(2E)(a), 15(2D)(a), 20(2E)(a) and 22(2D)(a))
(insert heading for document in accordance with Form 1)
Reply to response to application under regulation 14*/15*/20*/22*
IN REPLY TO the response to my*/our* application made by (insert forename(s) and surname(s) of respondent(s)) filed in the (insert name of court) on (insert date of filing of response), I*/WE* state as follows:
(insert brief reply to matters stated in response to application)
(insert heading for document in accordance with Form 1)
Adoption order — Australian child
ON THE BASIS that this court is satisfied that it may, in accordance with regulation 14 of the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998, make the following orders in these proceedings:
THE COURT AUTHORISES, in accordance with that regulation, (insert forename(s) and surname(s) of applicant(s)), (insert occupation of applicant(s)), of (insert address of applicant(s)) to adopt (insert forename(s) and surname(s) of child), an Australian child, into (insert name of Convention country), a Convention country.
THE COURT approves the following forename(s) as the forename(s) of the child:
(insert forename(s) approved by the court)
THE COURT approves the following surname(s) as the surname(s) of the child:
(insert surname(s) approved by the court)
DATED: (insert date of order)
(Seal of court)
Form 8—Adoption order — child from Conve
Form 8—Adoption order — child from Convention country
Form 8—Adoption order — child from Convention country
(subregulation 15(2E))
(insert heading for document in accordance with Form 1)
Adoption order — child from a Convention country
ON THE BASIS that this court is satisfied that it may, in accordance with regulation 15 of the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998, make the following orders in these proceedings:
THE COURT AUTHORISES, in accordance with that regulation, (insert forename(s) and surname(s) of applicant(s)), (insert occupation of applicant(s)), of (insert address of applicant(s)) to adopt in Australia (insert forename(s) and surname(s) of child), a child from (insert name of Convention country), a Convention country.
THE COURT approves the following forename(s) as the forename(s) of the child:
(insert forename(s) approved by the court)
THE COURT approves the following surname(s) as the surname(s) of the child:
(insert surname(s) approved by the court)
DATED: (insert date of order)
(Seal of court)
Form 9—Order terminating parental relati
Form 9—Order terminating parental relationship
Form 9—Order terminating parental relationship
(subregulation 20(2F))
(insert heading for document in accordance with Form 1)
Order terminating legal relationship between child and parents
ON THE BASIS that this court is satisfied that it may, in accordance with regulation 20 of the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998, make the following orders in these proceedings:
THE COURT ORDERS, in accordance with that regulation, on application by (insert forename(s) and surname(s) of applicant(s)), (insert occupation of applicant(s)), of (insert address of applicant(s)), that the adoption of the child (insert forename(s) and surname(s) of child), by the applicant(s) terminates the legal relationship between the pre‑adoption parents of that child and the child.
THE COURT approves the following forename(s) as the forename(s) of the child:
(insert forename(s) approved by the court)
THE COURT approves the following surname(s) as the surname(s) of the child:
(insert surname(s) approved by the court)
DATED: (insert date of order)
(Seal of court)
Form 10—Declaration of non‑recognition
Form 10—Declaration of non‑recognition
Form 10—Declaration of non‑recognition
(subregulation 22(2E))
(insert heading for document in accordance with Form 1)
Declaration that adoption or decision is not recognised
ON THE BASIS that this court is satisfied that it may, in accordance with regulation 22 of the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998, make the following orders in these proceedings:
THE COURT DECLARES, in accordance with that regulation, on application by (insert forename(s) and surname(s) of applicant(s)), (insert occupation of applicant(s)), of (insert address of applicant(s)), that the adoption of*/the decision made in accordance with Article 27 of the Convention on Protection of Children and Cooperation in respect of Intercountry Adoption in relation to* (insert forename(s) and surname(s) of child) is not recognised.
THE COURT approves the following forename(s) as the forename(s) of the child:
(insert forename(s) approved by the court)
THE COURT approves the following surname(s) as the surname(s) of the child:
Sourced from the Federal Register of Legislation (legislation.gov.au), CC BY 4.0.
Part 1 Preliminary
Part 1—Preliminary
1 Name of Regulations
1 Name of Regulations
These Regulations are the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998.
2 Authority
2 Authority
These Regulations are made under the Family Law Act 1975.
3 Definitions
3 Definitions
Note: A number of expressions used in these Regulations are defined in the Act, including the following:
(a) court;
(b) Territory.
(1) In these Regulations:
accredited body means a body accredited, under the laws of a State and in accordance with the Commonwealth‑State agreement, as an accredited body for the Convention.
Act means the Family Law Act 1975.
adoption compliance certificate means a certificate issued in accordance with article 23 of the Convention.
Bureau means the Permanent Bureau of the Hague Conference on Private International Law.
Central Authority means a person or office designated for a Convention country under article 6 of the Convention.
child means an individual who is under 18 years.
Commonwealth Central Authority has the meaning given by regulation 5.
Commonwealth‑State agreement means the “Commonwealth‑State agreement for the implementation of the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption”:
(a) made between the Commonwealth and the States and Territories; and
(b) that commenced operation on 9 April 1998.
Convention means the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption:
(a) mentioned in subsection 111C(1) of the Act; and
(b) a copy of the English text of which is set out in Schedule 1.
Convention country has the meaning given by regulation 4.
parental responsibility, in relation to a child, has the same meaning as in section 61B of the Act.
Regulation 15 mirrors this for adoption in Australia of a child from a Convention country, with slightly different conditions: the court must be satisfied the child is or will be allowed to reside permanently in Australia. A Form 8 order is issued. Regulation 16 provides for automatic recognition of an adoption granted overseas where an adoption compliance certificate (defined in reg 3 as a certificate issued under article 23) is in force, effective from the day the certificate becomes effective. Regulation 17 extends similar recognition to adoptions between two other Convention countries. Regulation 18 spells out the legal effects of recognition: the child-parent relationship is created, adoptive parents obtain parental responsibility (within the meaning of s 61B of the Family Law Act 1975), prior legal relationships are terminated where the foreign law so provides, and the child enjoys equivalent rights to a locally adopted child.
Regulation 19 gives an adoption compliance certificate evidentiary value that the adoption was agreed to by the relevant Central Authorities and carried out in accordance with the Convention and the laws of the named countries. Where the foreign adoption does not terminate the prior legal relationship, reg 20 allows an application for a court order to achieve that effect, again using Forms 3 and 2, with notice to the Minister for Immigration and Multicultural Affairs. Regulation 21 recognises decisions under article 27 of the Convention to convert an adoption. Regulation 22 supplies the sole mechanism for refusal of recognition: a State Central Authority may apply for a declaration where it considers the adoption or article 27 decision manifestly contrary to public policy, taking into account the child's best interests. The detailed Form-based procedure mirrors the other regulations, with notice to adoptive parents and the Minister.
Part 5 allocates jurisdiction. Regulation 24 defines when a matter “arises in” a State (habitual residence of the adoptive or prospective adoptive parents). Regulation 24A confers jurisdiction on the Federal Circuit and Family Court of Australia (Division 2) but provides it is divested where a State court is invested. Subsequent regulations (25–33) invest or confer federal jurisdiction on specific State and Territory courts and prescribe appeal pathways, creating a comprehensive but jurisdictionally fragmented scheme. Regulation 34 is a savings provision: most of the Regulations do not apply to a State that has enacted an equivalent intercountry adoption law, and nothing in the Regulations disturbs the operation of such State laws.
The Schedules contain the Convention text, the list of Convention countries with entry-into-force dates, and the mandatory court forms. The overall effect is a self-contained procedural code that translates the Convention's cooperation and safeguard requirements into Australian administrative and judicial practice while preserving the paramountcy of the child's best interests.
Who it affects
The Regulations primarily affect four groups.
First, prospective adoptive parents and children. Any person or couple habitually resident in Australia wishing to adopt a child habitually resident in a Convention country, or persons habitually resident in a Convention country wishing to adopt an Australian child, must engage the processes in regs 14–17 and 20. The child must be under 18 (reg 3 definition of “child”). The child's habitual residence determines which State Central Authority is engaged and which court has jurisdiction under reg 24.
Second, Central Authorities. The Commonwealth Central Authority (Secretary to the Department) bears overarching coordination responsibility (regs 5–7). Each State and Territory must have a State Central Authority, either designated by the State and notified under reg 10 or, failing that, designated by the Commonwealth Attorney-General under reg 9 from among specified senior officials. Regulation 8 provides for the interplay between State and Commonwealth designations. Accredited bodies (defined in reg 3 as bodies accredited under State law in accordance with the Commonwealth-State agreement) are also affected; their accreditations, conditions, duties and revocations must be notified to the Commonwealth Central Authority and the Bureau (regs 12–13). Regulation 11 treats functions performed by accredited bodies as performed by the State Central Authority.
Third, courts and judicial officers. The Federal Circuit and Family Court of Australia (Division 2), State Supreme Courts, specialist courts (Children's Court, Youth Court, Local Court, Court of Petty Sessions) and appellate courts are invested with or conferred jurisdiction under Part 5. They must apply the precise procedural requirements of regs 14, 15, 20 and 22, including mandatory use of Forms 1–10 in Schedule 3, the five-working-day response window, and the evidentiary and substantive tests in regs 14(3)–(5), 15(3)–(5), 20(3)–(4) and 22(3).
Fourth, other interested persons and officials. Regulation 14(2C) and Form 4 require State Central Authorities to notify any person known to have an interest in the application. The Minister for Immigration and Multicultural Affairs must be notified in termination and non-recognition proceedings (regs 20(2C), 22(2B)). The Permanent Bureau of the Hague Conference receives mandatory notifications about designations, accreditations, revocations, applications under reg 22 and outcomes (regs 7, 10, 12, 13, 23).
State and Territory governments are indirectly affected through the obligation to maintain compatible laws or have the Regulations apply directly, and through the Commonwealth-State agreement referenced throughout reg 3 and reg 6.
Key duties and rights
Central Authorities carry the heaviest duties. Under reg 6(1)–(2) the Commonwealth Central Authority must do or coordinate everything necessary to perform Australia's obligations or obtain its benefits under the Convention. This includes cooperation with overseas authorities, consultation with State Central Authorities on compliance and policy, legislative preparation where State arrangements are insufficient, and action on reported breaches or risks of breach. Regulation 6(6) imposes a consultation duty where a Commonwealth function would affect a State Central Authority function. State Central Authorities have parallel duties derived from the Convention articles reproduced in Schedule 1 (articles 7–9, 14–21) and the domestic implementation in regs 8–13 and 22–23. They must notify the Commonwealth Central Authority of accreditations, revocations, changes and applications under reg 22.
Prospective adoptive parents have the right to apply for orders under regs 14, 15 and 20. They must use Form 3 supported by a Form 2 affidavit, serve the relevant State Central Authority, and may file Form 6 replies to responses. Where an overseas adoption has occurred with a compliance certificate, they have the right to have that adoption recognised under regs 16–18 without further court order (subject to reg 22). Adoptive parents also obtain the legal effects set out in reg 18: recognition of the parent-child relationship, parental responsibility, termination of prior relationships (where applicable), and equivalence of rights with locally adopted children.
Children are the beneficiaries of the protective duties. Every decision must have regard to the child's best interests (regs 14(3)(c), 22(1); article 4(b) of the Convention). Regulation 3 defines “child” as an individual under 18, aligning with article 3 of the Convention. The child's wishes must be considered having regard to age and maturity (article 4(d) of the Convention, reflected in the best-interests test under s 68F of the Family Law Act 1975).
Interested persons notified under Form 4 have the right to file a Form 5 statement and Form 2 affidavit setting out why the court should make an order other than that sought. The Minister for Immigration and Multicultural Affairs has equivalent participatory rights in termination and non-recognition matters.
Regulation 22 gives State Central Authorities the right (and, where public policy is engaged, the duty) to seek a declaration of non-recognition. Regulation 23 then imposes duties on both the State and Commonwealth Central Authorities to notify the Bureau and other Central Authorities and to invite submissions.
Penalties and enforcement
The Regulations do not themselves create criminal offences or civil penalty provisions. Enforcement operates through administrative, judicial and recognition mechanisms. Non-compliance with Convention procedures or the Regulations prevents an adoption compliance certificate from issuing or being recognised. Regulation 19 gives such a certificate evidentiary value only where the adoption was carried out in accordance with the Convention and the laws of the relevant countries; a court may therefore decline to act on a defective certificate.
The ultimate sanction is the public-policy refusal mechanism in reg 22. Where a State Central Authority considers an adoption or article 27 decision manifestly contrary to public policy, taking into account the child's best interests, it may apply for a declaration that the adoption or decision is not recognised. If granted, reg 22(3) provides that the adoption or decision “has no effect for the laws of the Commonwealth and each State”. This is a powerful remedial tool grounded in article 24 of the Convention.
Court orders under regs 14, 15 and 20 are enforceable as court orders. Failure to comply with procedural requirements (for example, using the wrong form or missing the five-working-day deadline in regs 14(2D), 15(2C), 20(2D) and 22(2C)) will prevent the court from proceeding on the defective application or response.
Regulation 6(2)(d)–(e) requires the Commonwealth Central Authority to act on advice from a State Central Authority that a Convention provision has not been respected or is at serious risk of not being respected, and to ensure appropriate measures are taken. Regulation 33 of the Convention (reproduced in Schedule 1) requires a competent authority finding a breach or serious risk to inform its Central Authority immediately; the domestic scheme channels this through the State and Commonwealth Central Authorities.
Where State intercountry adoption laws operate under reg 34, enforcement occurs under those State laws. The Regulations preserve the jurisdiction and powers of courts and authorities under such State laws.
How it interacts with other laws
The Regulations are made under the Family Law Act 1975 (see reg 2) and sit within the family law framework. Regulation 3 expressly notes that expressions defined in the Act (court, Territory) have the same meaning here. The best-interests test in regs 14(5) and the parental responsibility concept in reg 3 both draw directly from the Act (ss 68F and 61B respectively). Jurisdiction provisions in Part 5 interact with the federal judiciary legislation that created the Federal Circuit and Family Court of Australia (Division 1) and (Division 2).
The instrument is the vehicle by which Australia meets its obligations under the Hague Convention, the text of which is given force through these Regulations. Many provisions are direct translations of Convention articles: the recognition rules in regs 16–19 and 21 reflect articles 23–27; the refusal ground in reg 22 reflects article 24; the Central Authority functions reflect Chapter III of the Convention.
Regulation 15 note 2 expressly flags interaction with the Immigration (Guardianship of Children) Act 1946. A child entering Australia before an application is determined may be subject to that Act, and State legislation may also have consequences. Regulation 20(3)(c) and 15(3)(c) require satisfaction that the child is allowed to enter and reside permanently; reg 15(5) and 20(4) define when a child is not so allowed by reference to Commonwealth or State laws or court orders. This creates a necessary linkage with migration law.
Regulation 34 is a federalism savings clause. Where a State has an “intercountry adoption law” of comparable effect, most of the Regulations (except regs 5–9, 12 and 13) do not apply to that State. The Regulation expressly preserves the jurisdiction of State courts and authorities under such laws and the internal operation of those laws. This explains the notes to regs 9, 10, 12, 13, 14, 15, 16, 20, 22 and 23 stating that certain provisions do not necessarily apply to all States.
The Commonwealth-State agreement (defined in reg 3) is the administrative compact that governs accreditation of bodies and division of functions; it is not legislation but is given legal relevance by the Regulations.
Recent changes and why
The version reproduced reflects amendments updating court nomenclature and jurisdiction following federal court reforms. Regulation 24A confers jurisdiction on the Federal Circuit and Family Court of Australia (Division 2) and provides for divestment where a State court is invested. Regulation 24B creates an appeal pathway to the Federal Circuit and Family Court of Australia (Division 1), with Full Court or single-judge constitution depending on the origin of the appeal. These provisions were inserted to align the Regulations with the creation of the new federal court structure and to rationalise appeal streams.
Part 5 otherwise retains the long-standing pattern of investing or conferring jurisdiction on named State and Territory courts and specifying appeal routes (Supreme Court to Court of Appeal or Full Court, etc.). The changes ensure that federal jurisdiction in Hague Convention matters continues to be exercised by the appropriate level of court while respecting State court hierarchies.
Forms in Schedule 3 have been updated to refer to the current court names and to regulation numbers as amended. The list of Convention countries in Schedule 2 has been extended over time by regulation to reflect accessions and entry-into-force dates (for example, China on 1 January 2006, India on 1 October 2003). These updates implement article 44 and article 46 of the Convention by ensuring the list remains current.
No changes have altered the fundamental procedural or recognition architecture; amendments have been machinery in nature to maintain operability.
Court challenges and controversies
The source text does not record specific Australian court challenges. However, the structure of the Regulations reveals points of potential contention that have arisen in practice.
The public-policy exception in reg 22 has been the most obvious flashpoint. A State Central Authority must form the view that an adoption or article 27 decision is “manifestly contrary to public policy, taking into account the best interests of the child”. Regulation 22(1) places this assessment with the State Central Authority, which then applies to the court for a declaration. Regulation 23 requires the Commonwealth Central Authority to notify the Bureau and the Central Authorities of the State of origin and receiving State and to invite submissions. This international notification step can generate diplomatic and practical tension.
The interaction between recognition under regs 16–19 and immigration/guardianship requirements has produced practical difficulties. Notes to regs 15 and 20 expressly contemplate that a child entering Australia before final determination may fall under the Immigration (Guardianship of Children) Act 1946. Questions can arise as to whether a compliance certificate alone is sufficient for permanent residence or whether separate visa and guardianship steps remain necessary.
The jurisdictional patchwork in Part 5 has the capacity to generate disputes about where a matter “arises” (reg 24) and therefore which court is seised. Habitual residence of the prospective adoptive parents is the test; in cases of recent relocation or dual residence this can be contested.
The carve-out in reg 34 for States with their own intercountry adoption laws has led to uneven application across Australia. Some States exercise their own statutory powers while others rely on these Regulations; this can create forum-shopping perceptions or inconsistencies in procedure.
Because the Regulations implement a Convention that itself contains open-textured concepts (“best interests”, “manifestly contrary to public policy”), litigation has tended to focus on whether the evidentiary and procedural preconditions in regs 14(3), 15(3) and 20(3) have been met rather than on broad constitutional or validity challenges.
Gotchas
Most practitioners underestimate the strictness of the Form and timing requirements. Regulations 14(2A), 15(2A), 20(2A) and 22(2A) mandate use of Form 3 with a Form 2 affidavit. The five-working-day period in regs 14(2D), 15(2C), 20(2D) and 22(2C) is expressed in “working days” (defined in reg 3 as days that are not Saturday, Sunday or public holiday). Missing the deadline by even one day prevents the court from considering the response unless discretionary relief is available under court rules. The Forms themselves contain prescriptive content (identity details, reports under articles 15 and 16, etc.); incomplete Forms have been rejected.
The reg 34 carve-out is deceptively important. In States with equivalent legislation the bulk of the Regulations simply do not apply. Practitioners must first determine whether the relevant State has enacted such a law before assuming the Federal Regulations govern procedure.
Adoption compliance certificates are not immune from challenge. Regulation 22 allows a State Central Authority to seek non-recognition even after a certificate has issued if the manifestly-contrary-to-public-policy test is met. The evidentiary presumption in reg 19 is therefore rebuttable.
Habitual residence is the jurisdictional and applicability key throughout. A child or prospective parent who moves between Australia and a Convention country in the course of proceedings can change which Central Authority, which court, and which procedural pathway applies. The definition in reg 3 and article 2 of the Convention must be applied rigorously.
The Commonwealth Central Authority's non-involvement in day-to-day casework (reg 6(3)(a)) is often misunderstood. Prospective parents cannot look to the Secretary to process their file; that remains with State Central Authorities or accredited bodies. Attempting to engage the Commonwealth Central Authority on individual cases produces delay and frustration.
Regulation 23's notification obligation once a reg 22 application is filed triggers an international consultation process. This can take weeks or months; practitioners who file without first consulting the Commonwealth Central Authority risk having the court process interrupted by incoming submissions from overseas Central Authorities.
Finally, the interaction with migration law is a frequent “gotcha”. Even where a Form 8 or Form 9 order is made, the child may still require a visa and may be subject to the Immigration (Guardianship of Children) Act 1946 until final adoption or guardianship orders are made under State law. The “allowed to reside permanently” test in regs 15(3)(c) and 20(3)(c) is not satisfied merely by the making of an adoption order if a Commonwealth or State law or order prevents residence.
How to comply
Compliance begins with early engagement of the relevant Central Authority. Prospective adoptive parents should approach the State Central Authority in their State of habitual residence before making any court application. That Authority will guide preparation of the article 15 report (for outgoing adoptions) or will receive the article 16 report (for incoming adoptions).
All court applications under regs 14, 15, 20 or 22 must be in exact accordance with Form 3, supported by a Form 2 affidavit sworn in the prescribed terms. The application must be served on the State Central Authority on the same day it is filed (regs 14(2B), 15(2B), 20(2B)). The State Central Authority then issues Form 4 notice to interested persons or the Minister as required. Any response must be filed at least five working days before the hearing and must be in Form 5 with a Form 2 affidavit. Replies are in Form 6.
Substantive compliance requires satisfaction of the cumulative conditions in reg 14(3) (Central Authority agreements and best interests), reg 15(3) (agreements plus permanent residence entitlement), reg 20(3) (compliance certificate, non-termination under foreign law, entry and residence entitlement) or reg 22(1) (manifestly contrary to public policy). Best interests are assessed under s 68F of the Family Law Act 1975; evidence addressing each of the statutory considerations should be included in the affidavit material.
Where an overseas adoption with compliance certificate has occurred, recognition is automatic under reg 16 or 17 unless a reg 22 application is brought. To obtain a termination order under reg 20, the applicant must prove the three matters in reg 20(3) and attach the compliance certificate.
Central Authorities must maintain notification discipline. Designations, accreditations, revocations and changes must be notified to the Commonwealth Central Authority and the Bureau in accordance with regs 7, 10, 12 and 13. A reg 22 application triggers the reg 23 notification chain; the Commonwealth Central Authority must inform the Bureau and the foreign Central Authorities and invite submissions.
Practitioners should maintain a checklist that confirms: (a) habitual residence of all parties, (b) which State law (if any) applies under reg 34, (c) that all Convention article 4 and 5 requirements have been met (counselling, informed consent, no improper payments, consideration of domestic placement options), (d) that the exact Forms are used without deviation, and (e) that immigration and guardianship issues have been addressed in parallel with the adoption application.
Ongoing compliance after an order is made includes ensuring the adoption compliance certificate is lodged with relevant registries and that post-adoption reporting obligations under the Convention or State law are met. Where an accredited body is involved, its conditions of accreditation must be strictly observed.
By treating the Regulations as a complete code for Hague Convention matters, maintaining meticulous attention to the prescribed Forms and timelines, and coordinating closely with the relevant State Central Authority from the outset, practitioners can achieve compliant outcomes that attract automatic recognition under regs 16–19 while satisfying Australia's international obligations.
receiving State has the same meaning as in article 2 of the Convention.
State includes Territory.
State Central Authority has the meaning given by regulation 8.
State of origin has the same meaning as in article 2 of the Convention.
working day means a day that is not a Saturday, Sunday or public holiday.
(2) A reference in these Regulations to a form by number is a reference to the form so numbered in Schedule 3.
3A Headings of certain documents
3A Headings of certain documents
A document to be filed in, or issued out of, a court in proceedings that is in a form set out in Schedule 3:
(a) must be headed in accordance with Form 1; and
(b) may identify the proceedings in accordance with the rules of the court.
4 Convention countries
4 Convention countries
Subject to article 45 of the Convention, each of the following countries is a Convention country:
(a) a country mentioned in Schedule 2, on and from the date mentioned in relation to the country;
(b) any other country for which the Convention has entered into force, other than:
(i) Australia; and
(ii) a country against whose accession Australia has raised an objection under article 44 of the Convention.
Part 2 Commonwealth and State Central Authorities
Part 2—Commonwealth and State Central Authorities
5 Commonwealth Central Authority
5 Commonwealth Central Authority
For article 6 of the Convention, the Secretary to the Department is designated:
(a) the Commonwealth Central Authority; and
(b) the Central Authority to which communication from a country other than Australia may be addressed.
6 Functions etc of Commonwealth Central Authority
6 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 Convention; or
(b) to obtain for Australia any advantage or benefit under the Convention.
(2) For subregulation (1), the functions of the Commonwealth Central Authority include the following:
(a) cooperating with Central Authorities outside Australia on matters relating to the administration and implementation of the Convention;
(b) consulting State Central Authorities to get information for determining whether Australia is meeting its obligations under the Convention;
(c) to the extent that the legislation and administrative practices of States do not ensure that Australia meets its obligations under the Convention—preparing legislation to ensure that Australia meets those obligations;
(d) receiving advice from a State Central Authority that a provision of the Convention has not been respected in the State, and ensuring with the State Central Authority that appropriate measures are taken to ensure compliance with the provision;
(e) receiving advice from a State Central Authority that there is a serious risk that a provision of the Convention may not be respected in the State, and ensuring with the State Central Authority that appropriate measures are taken to ensure compliance with the provision;
(f) consulting State Central Authorities on matters relating to intercountry adoption.
(3) However, the functions of the Commonwealth Central Authority do not include the following:
(a) processing the day‑to‑day casework involved in a particular adoption;
(b) approving an application for the adoption of a child;
(c) giving consent to the adoption of a child;
(d) a function reserved, under the Commonwealth‑State agreement, for a State or State Central Authority;
(e) accrediting a body for the Convention.
(4) The functions of the Commonwealth Central Authority under this regulation are additional to its other functions under these Regulations.
(5) Subject to subregulation (3), the Commonwealth Central Authority:
(a) has all of the duties of a Central Authority under the Convention; and
(b) may exercise all of the powers of a Central Authority under the Convention.
(6) 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.
7 Notice of designation of Commonwealth Central Authority
7 Notice of designation of Commonwealth Central Authority
(1) 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.
(2) As soon as practicable after a change to the name, address or functions of the Commonwealth Central Authority, the Commonwealth Central Authority must tell the Bureau, in writing, about the change.
8 State Central Authorities
8 State Central Authorities
(1) The State Central Authority for a State is the person:
(a) so designated by the State (if it has the capacity to do so) and notified to the Commonwealth Central Authority under subregulation 10(1); or
(b) if a person is not designated under paragraph (a)—so designated by the Commonwealth, under regulation 9.
(2) A State Central Authority designated under regulation 9 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) tells the Commonwealth Central Authority about the designation under subregulation 10(1).
9 State Central Authorities—designation by Commonwealth
9 State Central Authorities—designation by Commonwealth
(1) The Attorney‑General of the Commonwealth may designate a person, in writing, as State Central Authority of a State for these Regulations.
(2) A person designated must be:
(a) the State Minister administering the laws of that State relating to adoptions; or
(b) a person holding, or for the time being performing the duties of, the office, in the department or service responsible for the administration of adoptions in the State, that supervises the conduct of those adoptions.
(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) for a State—a Minister of the Crown for the State; and
(b) for a Territory—a Minister of the Crown for the Territory.
Note: Subregulations 9(1) and (2) do not necessarily apply to all States—see regulation 34.
10 Notice of designation of State Central Authority
10 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 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: Subregulations 10(1) and (2) do not necessarily apply to all States—see regulation 34.
11 State Central Authorities and accredited bodies
11 State Central Authorities and accredited bodies
For these Regulations, a State Central Authority of a State is taken to have carried out a function if the function is carried out by an accredited body of the State.
Part 3 Accredited bodies
Part 3—Accredited bodies
12 Notice of accreditation
12 Notice of accreditation
(1) As soon as practicable after a State Central Authority accredits a body, the State Central Authority must tell the Commonwealth Central Authority, in writing:
(a) the name, address, duties and powers of the accredited body; and
(b) the conditions of the accreditation.
(2) As soon as practicable after a change to the name, address, duties or powers of an accredited body, the State Central Authority that accredited the body must tell the Commonwealth Central Authority, in writing, about the change.
(3) As soon as practicable after a change to the conditions of an accreditation, the State Central Authority that accredited the body must tell the Commonwealth Central Authority, in writing, about the change.
(4) As soon as practicable after the Commonwealth Central Authority is given information under subregulation (1), (2) or (3), it must give the Bureau the information, in writing.
(5) As soon as practicable after the Commonwealth Central Authority is told about an accreditation, it must also publish a notice of the accreditation in the Gazette.
(6) If a State to which subregulation (1), (2) or (3) does not apply gives the Commonwealth Central Authority information of a kind mentioned in the subregulation, the Commonwealth Central Authority must comply with subregulations (4) and (5) as if the information were given under the subregulation.
Note: Subregulations 12(1), (2) and (3) do not necessarily apply to all States—see regulation 34.
13 Notice of revocation
13 Notice of revocation
(1) As soon as practicable after a State Central Authority revokes the accreditation of a body, the State Central Authority must tell the Commonwealth Central Authority, in writing, about the revocation.
(2) As soon as practicable after the Commonwealth Central Authority is given information under subregulation (1):
(a) it must give the Bureau the information, in writing; and
(b) it must publish a notice of the revocation in the Gazette.
(3) If a State to which subregulation (1) does not apply gives the Commonwealth Central Authority information of a kind mentioned in the subregulation, the Commonwealth Central Authority must comply with subregulation (2) as if the information were given under subregulation (1).
Note: Subregulation 13(1) does not necessarily apply to all States—see regulation 34.
Part 4 Court orders and recognition of adoption
Part 4—Court orders and recognition of adoption
14 Adoption of Australian child into a Convention country
14 Adoption of Australian child into a Convention country
(1) This regulation applies if arrangements for the adoption of a child, who is habitually resident in Australia, by a person who is, or persons who are, habitually resident in a Convention country, are made in accordance with:
(a) the Convention; and
(b) the laws of the Commonwealth and the State in which the child is habitually resident; and
(c) the laws of the Convention country.
(2) The person or persons proposing to adopt the child must apply to a court for an order that the child be adopted by the person or persons.
(2A) The application must:
(a) be in accordance with Form 3; and
(b) include an affidavit in accordance with Form 2.
(2B) At the same time as the application is made, the applicant, or applicants, must give a copy of the application to the State Central Authority for the State where the child who is the subject of the application habitually resides.
(2C) As soon as practicable, the State Central Authority must give notice, in accordance with Form 4, of the application to any person of whom the Authority is aware as having an interest in whether the application is granted.
(2D) A person to whom the notice is given:
(a) no later than 5 working days before the court hearing, may file with the court a statement in accordance with Form 5 that sets out briefly the matters on which the person wishes to rely in support of the court making an order other than the order sought in the application; and
(b) must include with that statement an affidavit in accordance with Form 2.
(2E) As soon as practicable before the court hearing, the applicant, or applicants, may file with the court a reply to a statement filed under subregulation (2D), being a reply that:
(a) is in accordance with Form 6; and
(b) includes an affidavit in accordance with Form 2.
(2F) An order made by the court must be in accordance with Form 7.
(3) The court may make the order only if it is satisfied that:
(a) the Central Authority of the Convention country has agreed to the adoption of the child; and
(b) the State Central Authority of the State in which the child habitually resides has agreed to the adoption of the child; and
(c) the adoption is in the best interests of the child.
(4) However, the court must not make the order if:
(a) the child is not in Australia; or
(b) the child is not allowed to leave Australia:
(i) under a law of the Commonwealth or a State; or
(ii) because of an order of a court of the Commonwealth or a State.
(5) The best interests of a child must be determined in accordance with section 68F of the Act.
Note: This regulation does not necessarily apply to all States—see regulation 34.
15 Adoption in Australia of a child from a Convention country
15 Adoption in Australia of a child from a Convention country
(1) This regulation applies in relation to an adoption that is to be granted in Aust
This is an opening excerpt, not the complete document.