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SR 1998 No. 249 Regulations as amended, taking into account amendments up to SLI 2006 No. 96
Administered by: Attorney-General's
Registered 09 May 2006
Start Date 09 May 2006

Family Law (Hague Convention on Intercountry Adoption) Regulations 1998

Statutory Rules 1998 No. 249 as amended

made under the

This compilation was prepared on 9 May 2006
taking into account amendments up to SLI 2006 No. 96

Prepared by the Office of Legislative Drafting and Publishing,
Attorney-General’s Department, Canberra


Contents

Part 1                    Preliminary                                                                 

                        1     Name of Regulations [see Note 1]                                     5

                        2     Commencement [see Note 1]                                           5

                        3     Interpretation                                                                   5

                      3A     Headings of certain documents                                         6

                        4     Convention countries                                                        7

Part 2                    Commonwealth and State Central Authorities 

                        5     Commonwealth Central Authority                                      8

                        6     Functions etc of Commonwealth Central Authority              8

                        7     Notice of designation of Commonwealth Central Authority  10

                        8     State Central Authorities                                                 10

                        9     State Central Authorities — designation by Commonwealth 10

                       10     Notice of designation of State Central Authority                11

                       11     State Central Authorities and accredited bodies                12

Part 3                    Accredited bodies                                                    

                       12     Notice of accreditation                                                    13

                       13     Notice of revocation                                                        14

Part 4                    Court orders and recognition of adoption         

                       14     Adoption of Australian child into a Convention country       15

                       15     Adoption in Australia of a child from a Convention country  16

                       16     Adoption of a child from a Convention country to Australia 18

                       17     Adoption of a child from a Convention country to another Convention country    19

                       18     Effect of recognition of an adoption                                  19

                       19     Evidential value of adoption compliance certificate             19

                       20     Order terminating legal relationship between child and parents            20

                       21     Decision in a Convention country to convert an adoption    22

                       22     Refusal to recognise an adoption or an article 27 decision 22

                       23     Notice of application under regulation 22                          23

Part 5                    Jurisdiction of courts                                              

                       24     Meaning of arising in a State or Territory                          25

                    24A     Jurisdiction of Family Court of Australia                            25

                    24B     Appeals may be made to Full Court of Family Court of Australia          25

                    24C     Evidence given in an appeal                                            26

                    24D     Time for instituting appeal                                               26

                    24E     Orders that may be made on appeal                                26

                     24F     Appeals to High Court                                                    26

                       25     Jurisdiction of courts — New South Wales                       27

                       26     Jurisdiction of courts — Victoria                                      27

                       27     Jurisdiction of courts — Queensland                                28

                       28     Jurisdiction of courts — South Australia                           28

                       29     Jurisdiction of Family Court of Western Australia — Western Australia, Christmas Island and Cocos (Keeling) Islands                                                            29

                       30     Jurisdiction of courts — Tasmania                                   29

                       31     Jurisdiction of courts — Australian Capital Territory, Jervis Bay Territory, Heard and McDonald Islands and Australian Antarctic Territory                         30

                       32     Jurisdiction of courts — Northern Territory and Ashmore and Cartier Islands     30

                       33     Jurisdiction of courts — Norfolk Island and the Coral Seas Islands Territory      31

Part 6                    Miscellaneous                                                           

                       34     Application                                                                    33

Schedule 1             The Convention                                                           34

Schedule 2             Convention countries                                                   50

Schedule 3             Forms                                                                          53

Form 1                     Heading of documents for use in court proceedings           53

Form 2                     Affidavit                                                                         54

Form 3                     Application for order                                                       55

Form 4                     Notice of application                                                       58

Form 5                     Response to application                                                 59

Form 6                     Reply to response to application                                      60

Form 7                     Adoption order — Australian child                                    61

Form 8                     Adoption order — child from Convention country               62

Form 9                     Order terminating parental relationship                             63

Form 10                   Declaration of non-recognition                                         64

Notes                                                                                                          65

 

 


Part 1                 Preliminary

  

1              Name of Regulations [see Note 1]

                These Regulations are the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998.

2              Commencement [see Note 1]

                These Regulations commence on the day the Convention enters into force for Australia.

Note 1   See subsection 111C (2) of the Act.

Note 2   Not all the provisions of these Regulations necessarily apply to all States — see regulation 34.

3              Interpretation

         (1)   In these Regulations, unless the contrary intention appears:

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.

Note   The following expressions used in these Regulations are defined in the Act (see section 4):

·                court

·                Territory.

         (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

                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

                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

  

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

         (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

         (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

         (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

         (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

         (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

                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

  

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

         (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

  

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

         (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

         (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

         (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

                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

                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

         (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

         (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

         (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

         (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

  

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 Family Court of Australia

         (1)   Jurisdiction is conferred on the Family Court of Australia 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 Family Court is divested of jurisdiction in the matter.

         (3)   Subregulation (2) does not have effect in relation to:

                (a)    proceedings instituted in the Family Court 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 may be made to Full Court of Family Court of Australia

         (1)   An appeal may be made to a Full Court of the Family Court from a decision of the Family Court:

                (a)    constituted by a single judge; and

               (b)    exercising jurisdiction under subregulation 24A (1).

         (2)   Jurisdiction is conferred on the Family Court for appeals instituted under subregulation (1).

24C         Evidence given in an appeal

         (1)   In an appeal mentioned in regulation 24B, the Family Court:

                (a)    must have regard to the evidence given in the proceedings out of which the appeal arose; and

               (b)    has power to draw inferences of fact; and

                (c)    may, in its discretion, receive further evidence on questions of fact.

         (2)   For paragraph (1) (c), evidence may be given in the following ways:

                (a)    by affidavit;

               (b)    by oral examination before the Family Court, constituted by a Full Court or by a judge sitting alone;

                (c)    in a manner directed by the Family Court.

24D         Time for instituting appeal

                An appeal mentioned in regulation 24B must be instituted:

                (a)    within the time prescribed by the Rules of Court; or

               (b)    within a further time that is allowed by the Rules of Court.

24E         Orders that may be made on appeal

                The Full Court may, in relation to an appeal mentioned in regulation 24B:

                (a)    affirm, reverse or vary the decree or decision that is the subject of the appeal; and

               (b)    make a decree or decision that, in the opinion of the Court, ought to have been made in the first instance.

24F         Appeals to High Court

                An appeal does not lie to the High Court, from a decree of a court exercising jurisdiction under regulation 24A or 24B, except by special leave of the High Court.

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

         (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

         (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

         (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

         (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

         (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

         (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

         (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

         (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

  

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.


Schedule 1        The Convention

(regulation 3)

  

CONVENTION ON PROTECTION OF CHILDREN AND COOPERATION IN RESPECT OF INTERCOUNTRY ADOPTION

The States signatory to the present Convention,

Recognising that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding,

Recalling that each State should take, as a matter of priority, appropriate measures to enable the child to remain in the care of his or her family of origin,

Recognising that intercountry adoption may offer the advantage of a permanent family to a child for whom a suitable family cannot be found in his or her State of origin,

Convinced of the necessity to take measures to ensure that intercountry adoptions are made in the best interests of the child and with respect for his or her fundamental rights, and to prevent the abduction, the sale of, or traffic in children,

Desiring to establish common provisions to this effect, taking into account the principles set forth in international instruments, in particular the United Nations Convention on the Rights of the Child, of 20 November 1989, and the United Nations Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally (General Assembly Resolution 41/85, of 3 December 1986),

Have agreed upon the following provisions—

CHAPTER 1—SCOPE OF THE CONVENTION

Article 1

The objects of the present Convention are—

a          to establish safeguards to ensure that intercountry adoptions take place in the best interests of the child and with respect for his or her fundamental rights as recognised in international law;

b          to establish a system of cooperation amongst Contracting States to ensure that those safeguards are respected and thereby prevent the abduction, the sale of, or traffic in children;

c          to secure the recognition in Contracting States of adoptions made in accordance with the Convention.

Article 2

1          The Convention shall apply where a child habitually resident in one Contracting State (‘the State of origin’) has been, is being, or is to be moved to another Contracting State (‘the receiving State’) either after his or her adoption in the State of origin by spouses or a person habitually resident in the receiving State, or for the purposes of such an adoption in the receiving State or in the State of origin.

2          The Convention covers only adoptions which create a permanent parent-child relationship.

Article 3

The Convention ceases to apply if the agreements mentioned in Article 17, sub-paragraph c, have not been given before the child attains the age of eighteen years.

CHAPTER II—REQUIREMENTS FOR INTERCOUNTRY ADOPTIONS

Article 4

An adoption within the scope of the Convention shall take place only if the competent authorities of the State of origin—

a          have established that the child is adoptable;

b          have determined, after possibilities for placement of the child within the State of origin have been given due consideration, that an intercountry adoption is in the child’s best interests;

c          have ensured that

(1)   the persons, institutions and authorities whose consent is necessary for adoption, have been counselled as may be necessary and duly informed of the effects of their consent, in particular whether or not an adoption will result in the termination of the legal relationship between the child and his or her family of origin,

(2)   such persons, institutions and authorities have given their consent freely, in the required legal form, and expressed or evidenced in writing,

(3)   the consents have not been induced by payment or compensation of any kind and have not been withdrawn, and

(4)   the consent of the mother, where required, has been given only after the birth of the child; and

d          have ensured, having regard to the age and degree of maturity of the child, that

(1)   he or she has been counselled and duly informed of the effects of the adoption and of his or her consent to the adoption, where such consent is required,

(2)   consideration has been given to the child’s wishes and opinions,

(3)   the child’s consent to the adoption, where such consent is required, has been given freely, in the required legal form, and expressed or evidenced in writing, and

(4)   such consent has not been induced by payment or compensation of any kind.

Article 5

An adoption within the scope of the convention shall take place only if the competent authorities of the receiving State—

a          have determined that the prospective adoptive parents are eligible and suited to adopt;

b          have ensured that the prospective adoptive parents have been counselled as may be necessary; and

c          have determined that the child is or will be authorised to enter and reside permanently in that State.

CHAPTER III—CENTRAL AUTHORITIES AND ACCREDITED BODIES

Article 6

1          A Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities.

2          Federal States, States with more than one system of law or States having autonomous territorial units shall be free to appoint more than one Central Authority and to specify the territorial or personal extent of their functions. Where a State has appointed more than one Central Authority, it shall designate the Central Authority to which any communication may be addressed for transmission to the appropriate Central Authority within that State.

Article 7

1          Central Authorities shall cooperate with each other and promote cooperation amongst the competent authorities in their States to protect children and to achieve the other objects of the Convention.

2          They shall take directly all appropriate measures to—

a          provide information as to the laws of their States concerning adoption and other general information, such as statistics and standard forms;

b          keep one another informed about the operation of the Convention and, as far as possible, eliminate any obstacles to it application.

Article 8

Central Authorities shall take, directly or through public authorities, all appropriate measures to prevent improper financial or other gain in connection with an adoption and to deter all practices contrary to the objects of the Convention.

Article 9

Central Authorities shall take, directly or through public authorities or other bodies duly accredited in their State, all appropriate measures, in particular to—

a          collect, preserve and exchange information about the situation of the child and the prospective adoptive parents, so far as is necessary to complete the adoption;

b          facilitate, follow and expedite proceedings with a view to obtaining the adoption;

c          promote the development of adoption counselling and post-adoption services in their States;

d          provide each other with general evaluation reports about experience with intercountry adoption;

e          reply, in so far as is permitted by the law of their State, to justified requests from other Central Authorities or public authorities for information about a particular adoption situation.

Article 10

Accreditation shall only be granted to and maintained by bodies demonstrating their competence to carry out properly the tasks with which they may be entrusted.

Article 11

An accredited body shall—

a          pursue only non-profit objectives according to such conditions and within such limits as may be established by the competent authorities of the State of accreditation;

b          be directed and staffed by persons qualified by their ethical standards and by training or experience to work in the field of intercountry adoption; and

c          be subject to supervision by competent authorities of that State as to its composition, operation and financial situation.

Article 12

A body accredited in one Contracting State may act in another Contracting State only if the competent authorities of both States have authorised it to do so.

Article 13

The designation of the Central Authorities and where appropriate, the extent of their functions, as well as the names and addresses of the accredited bodies shall be communicated by each Contracting State to the Permanent Bureau of the Hague Conference on Private International Law.

CHAPTER IV—PROCEDURAL REQUIREMENTS IN INTERCOUNTRY ADOPTION

Article 14

Persons habitually resident in a Contracting State, who wish to adopt a child habitually resident in another Contracting State, shall apply to the Central Authority in the State of their habitual residence.

Article 15

1          If the Central Authority of the receiving State is satisfied that the applicants are eligible and suited to adopt, it shall prepare a report including information about their identity, eligibility and suitability to adopt, background, family and medical history, social environment, reasons for adoption, ability to undertake an intercountry adoption, as well as the characteristics of the children for whom they would be qualified to care.

2          It shall transmit the report to the Central Authority of the State of origin.

Article 16

1          If the Central Authority of the State of origin is satisfied that the child is adoptable, it shall—

a          prepare a report including information about his or her identity, adoptability, background, social environment, family history, medical history including that of the child’s family, and any special needs of the child;

b          give due consideration to the child’s upbringing and to his or her ethnic, religious and cultural background;

c          ensure that consents have been obtained in accordance with Article 4; and

d          determine, on the basis in particular of the reports relating to the child and the prospective adoptive parents, whether the envisaged placement is in the best interests of the child.

2          It shall transmit to the Central Authority of the receiving State its report on the child, proof that the necessary consents have been obtained and the reasons for its determination on the placement, taking care not to reveal the identity of the mother and the father if, in the State of origin, these identities may not be disclosed.

Article 17

Any decision in the State of origin that a child should be entrusted to prospective adoptive parents may only be made if—

a          the Central Authority of that State has ensured that the prospective adoptive parents agree;

b          the Central Authority of the receiving State has approved such decision, where such approval is required by the law of that State or by the Central Authority of the State of origin;

c          the Central Authorities of both States have agreed that the adoption may proceed; and

d          it has been determined, in accordance with Article 5, that the prospective adoptive parents are eligible and suited to adopt and that the child is or will be authorised to enter and reside permanently in the receiving State.

Article 18

The Central Authorities of both States shall take all necessary steps to obtain permission for the child to leave the State of origin and to enter and reside permanently in the receiving State.

Article 19

1          The transfer of the child to the receiving State may only be carried out if the requirements of Article 17 have been satisfied.

2          The Central Authorities of both States shall ensure that this transfer takes place in secure and appropriate circumstances and, if possible, in the company of the adoptive or prospective adoptive parents.

3          If the transfer of the child does not take place, the reports referred to in Articles 15 and 16 are to be sent back to the authorities who forwarded them.

Article 20

The Central Authorities shall keep each other informed about the adoption process and the measures taken to complete it, as well as about the progress of the placement if a probationary period is required.

Article 21

1          Where the adoption is to take place after the transfer of the child to the receiving State and it appears to the Central Authority of that State that the continued placement of the child with the prospective adoptive parents is not in the child’s best interests, such Central Authority shall take the measures necessary to protect the child, in particular—

a          to cause the child to be withdrawn from the prospective adoptive parents and to arrange temporary care;

b          in consultation with the Central Authority of the State of origin, to arrange without delay a new placement of the child with a view to adoption or, if this is not appropriate, to arrange alternative long-term care; an adoption shall not take place until the Central Authority of the State of origin has been duly informed concerning the new prospective adoptive parents;

c          as a last resort, to arrange the return of the child, if his or her interests so require.

2          Having regard in particular to the age and degree of maturity of the child, he or she shall be consulted and, where appropriate, his or her consent obtained in relation to measures to be taken under this Article.

Article 22

1          The functions of a Central Authority under this Chapter may be performed by public authorities or by bodies accredited under Chapter III, to the extent permitted by the law of its State.

2          Any Contracting State may declare to the depositary of the Convention that the functions of the Central Authority under Articles 15 to 21 may be performed in that State, to the extent permitted by the law and subject to the supervision of the competent authorities of that State, also by bodies or person who—

a          meet the requirements of integrity, professional competence, experience and accountability of that State; and

b          are qualified by their ethical standards and by training or experience to work in the field of intercountry adoption.

3          A Contracting State which makes the declaration provided for in paragraph 2 shall keep the Permanent Bureau of the Hague Conference on Private International Law informed of the names and addresses of these bodies and persons.

4          Any Contracting State may declare to the depositary of the Convention that adoptions of children habitually resident in its territory may only take place if the functions of the Central Authorities are performed in accordance with paragraph 1.

5          Notwithstanding any declaration made under paragraph 2, the reports provide for in Articles 15 and 16 shall, in every case, be prepared under the responsibility of the Central Authority or other authorities or bodies in accordance with paragraph 1.

CHAPTER V—RECOGNITION AND EFFECTS OF THE ADOPTION

Article 23

1          An adoption certified by the competent authority of the State of the adoption as having been made in accordance with the Convention shall be recognised by operation of law in the other Contracting States. The certificate shall specify when and by whom the agreements under Article 17, sub-paragraph c, were given.

2          Each Contracting State shall, at the time of signature, ratification, acceptance, approval or accession, notify the depositary of the Convention of the identity and the functions of the authority or the authorities which, in that State, are competent to make the certification. It shall also notify the depositary of any modification in the designation of these authorities.

Article 24

The recognition of an adoption may be refused in a Contracting State only if the adoption is manifestly contrary to its public policy, taking into account the best interests of the child.

Article 25

Any Contracting State may declare to the depositary of the Convention that it will not be bound under this Convention to recognise adoptions made in accordance with an agreement concluded by application of Article 39, paragraph 2.

Article 26

1          The recognition of an adoption includes recognition of—

a          the legal parent-child relationship between the child and his or her adoptive parents;

b          parental responsibility of the adoptive parents for the child;

c          the termination of a pre-existing legal relationship between the child and his or her mother and father, if the adoption has this effect in the Contracting State where it was made.

2          In the case of an adoption having the effect of terminating a pre-existing legal parent-child relationship, the child shall enjoy in the receiving State, and in any other Contracting State where the adoption is recognised, rights equivalent to those resulting from adoptions having this effect in each such State.

3          The preceding paragraphs shall not prejudice the application of any provision more favourable for the child, in force in the Contracting State which recognises the adoption.

Article 27

1          Where an adoption granted in the State of origin does not have the effect of terminating a pre-existing legal parent-child relationship, it may, in the receiving State which recognises the adoption under the Convention, be converted into an adoption having such an effect—

a          if the law of the receiving State so permits; and

b          if the consent referred to in Article 4, sub-paragraphs c and d, have been or are given for the purpose of such an adoption.

2          Article 23 applies to the decision converting the adoption.

CHAPTER VI—GENERAL PROVISIONS

Article 28

The Convention does not affect any law of a State of origin which requires that the adoption of a child habitually resident within that State take place in that State or which prohibits the child’s placement in, or transfer to, the receiving State prior to adoption.

Article 29

There shall be no contact between the prospective adoptive parents and the child’s parents or any other person who has care of the child until the requirements of Article 4, sub-paragraphs a to c, and Article 5, sub-paragraph a, have been met, unless the adoption takes place within a family or unless the contact is in compliance with the conditions established by the competent authority of the State of origin.

Article 30

1          The competent Authorities of a Contracting State shall ensure that information held by them concerning the child’s origin, in particular information concerning the identity of his or her parents, as well as the medical history, is preserved.

2          They shall ensure that the child or his or her representative has access to such information, under appropriate guidance, in so far as is permitted by the law of that State.

Article 31

Without prejudice to Article 30, personal data gathered or transmitted under the Convention, especially data referred to in Articles 15 and 16, shall be used only for the purposes for which they were gathered or transmitted.

Article 32

1          No one shall derive improper financial or other gain from an activity related to an intercountry adoption.

2          Only costs and expenses, including reasonable professional fees of person involved in the adoption, may be charged or paid.

3          The directors, administrators and employees of bodies involved in an adoption shall not receive remuneration which is unreasonably high in relation to services rendered.

Article 33

A competent authority which finds that any provision of the Convention has not been respected or that there is a serious risk that it may not be respected, shall immediately inform the Central Authority of its State. This Central Authority shall be responsible for ensuring that appropriate measures are taken.

Article 34

If the competent authority of the State of destination of a document so requests, a translation certified as being in conformity with the original must be furnished. Unless otherwise provided, the costs of such translation are to be borne by the prospective adoptive parents.

Article 35

The competent authorities of the Contracting States shall act expeditiously in the process of adoption.

Article 36

In relation to a State which has two or more systems of law with regard to adoption applicable in different territorial units—

a          any reference to habitual residence in that State shall be construed as referring to habitual residence in a territorial unit of that State;

b          any reference to the law of that State shall be construed as referring to the law in force in the relevant territorial unit;

c          any reference to the competent authorities or to be public authorities of that State shall be construed as referring to those authorised to act in the relevant territorial unit;

d          any reference to the accredited bodies of that State shall be construed as referring to bodies accredited in the relevant territorial unit.

Article 37

In relation to a State which with regard to adoption has two or more systems of law applicable to different categories of person, any reference to the law of that State shall be construed as referring to the legal system specified by the law of that State.

Article 38

A State within which different territorial units have their own rules of law in respect of adoption shall not be bound to apply the Convention where a State with a unified system of law would not be bound to do so.

Article 39

1          The Convention does not affect any international instrument to which Contracting States are Parties and which contains provisions on matters governed by the Convention, unless a contrary declaration is made by the States Parties to such instrument.

2          Any Contracting State may enter into agreements with one or more other Contracting States, with a view to improving the application of the Convention in their mutual relations. These agreements may derogate only from the provisions of Articles 14 to 16 and 18 to 21. The States which have concluded such an agreement shall transmit a copy to the depositary of the Convention.

Article 40

No reservation to the Convention shall be permitted.

Article 41

The Convention shall apply in every case where an application pursuant to Article 14 has been received after the Convention has entered into force in the receiving State and the State of origin.

Article 42

The Secretary General of the Hague Conference on Private International Law shall at regular intervals convene a Special Commission in order to review the practical operation of the Convention.

CHAPTER VII—FINAL CLAUSES

Article 43

1          The Convention shall be open for signature by the States which were Members of the Hague Conference on Private International Law at the time of its Seventeenth Session and by the other States which participated in that Session.

2          It shall be ratified, accepted or approved and the instruments of ratification, acceptance or approval shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands, depositary of the Convention.

Article 44

1          Any other State may accede to the Convention after it has entered into force in accordance with Article 46, paragraph 1.

2          The instrument of accession shall be deposited with the depositary.

3          Such accession shall have effect only as regards the relations between the acceding State and those Contracting States which have not raised an objection to its accession in the six months after the receipt of the notification referred to in sub-paragraph b of Article 48. Such an objection may also be raised by States at the time when they ratify, accept or approve the Convention after an accession. Any such objection shall be notified to the depositary.

Article 45

1          If a State has two or more territorial units in which different systems of law are applicable in relation to matter dealt with in the Convention, it may at the time of signature, ratification, acceptance, approval or accession declare that this Convention shall extend to all its territorial units or only to one or more of them and may modify this declaration by submitting another declaration at any time.

2          Any such declaration shall be notified to the depositary and shall state expressly the territorial units to which the Convention applies.

3          If a State makes no declaration under this Article, the Convention is to extend to all territorial units of that State.

Article 46

1          The Convention shall enter into force on the first day of the month following the expiration of three months after the deposit of the third instrument of ratification, acceptance or approval referred to in Article 43.

2          Thereafter the Convention shall enter into force—

a          for each State ratifying, accepting or approving it subsequently, or acceding to it, on the first day of the month following the expiration of three months after the deposit of its instrument of ratification, acceptance, approval or accession;

b          for a territorial unit to which the Convention has been extended in conformity with Article 45, on the first day of the month following the expiration of three months after the notification referred to in that Article.

Article 47

1          A State Party to the Convention may denounce it by a notification in writing addressed to the depositary.

2          The denunciation takes effect on the first day of the month following the expirations of twelve months after the notification is received by the depositary. Where a longer period for the denunciation to take effect is specified in the notification, the denunciation takes effect upon the expiration of such longer period after the notification is received by the depositary.

Article 48

The depositary shall notify the States Members of the Hague Conference on Private International Law, the other States which participated in the Seventeenth Session and the States which have acceded in accordance with Article 44, of the following—

a          the signatures, ratifications, acceptances and approvals referred to in Article 43;

b          the accessions and objections raised to accessions referred to in Article 44;

c          the date on which the Convention enters into force in accordance with Article 46;

d          the declarations and designations referred to in Articles 22, 23, 25 and 45;

e          the agreements referred to in Article 39;

f           the denunciations referred to in Article 47.

In whereof the undersigned, being duly authorised thereto, have signed this Convention.

Done at The Hague, on the twenty-ninth day of May 1993, in the English and French languages, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Government of the Kingdom of the Netherlands, and of which a certified copy shall be sent, through diplomatic channels, to each of the States Members of the Hague Conference on Private International Law at the date of its Seventeenth Session and to each of the other States which participated in that Session.

 

Schedule 2        Convention countries

(regulation 4)

  

 

Country

Date

Albania

1 January 2001

Andorra

1 December 1998

Austria

1 September 1999

Azerbaijan

1 October 2004

Belarus

1 November 2003

Belgium

1 September 2005

Bolivia

1 July 2002

Brazil

1 July 1999

Bulgaria

1 September 2002

Burkina Faso

1 December 1998

Burundi

1 February 1999

Canada — in relation only to the following Provinces and Territories:

 

   (a)  Alberta, British Columbia, Manitoba,
New Brunswick, Prince Edward Island, Saskatchewan and the Yukon Territory

1 December 1998

   (b)  Northwest Territories

1 April 2000

   (c)  Nova Scotia

1 October 1999

   (d)  Nunavut

1 September 2001

   (e)  Ontario

1 December 1999

Chile

1 November 1999

China

1 January 2006

Colombia

1 December 1998

Costa Rica

1 December 1998

Cyprus

1 December 1998

Czech Republic

1 June 2000

Denmark (other than Faroe Islands and Greenland)

1 December 1998

Ecuador

1 December 1998

El Salvador

1 March 1999

Estonia

1 June 2002

Finland

1 December 1998

France (other than the overseas territories)

1 December 1998

Georgia

1 August 1999

Germany

1 March 2002

Guatemala

1 March 2003

Guinea

1 February 2004

Hungary

1 August 2005

Iceland

15 August 2000

India

1 October 2003

Israel

1 June 1999

Italy

1 May 2000

Latvia

1 December 2002

Lithuania

1 December 1998

Luxembourg

1 November 2002

Malta

1 February 2005

Mauritius

1 January 1999

Mexico

1 December 1998

Moldova

1 December 1998

Monaco

1 October 1999

Mongolia

30 November 2000

Netherlands

1 December 1998

New Zealand

1 January 1999

Norway

1 December 1998

Panama

1 January 2000

Paraguay

1 December 1998

Peru

1 December 1998

Philippines

1 December 1998

Poland

1 December 1998

Portugal

1 July 2004

Romania

1 December 1998

San Marino

1 February 2005

Slovakia

1 October 2001

Slovenia

1 May 2002

South Africa

1 December 2003

Spain

1 December 1998

Sri Lanka

1 December 1998

Sweden

1 December 1998

Switzerland

1 January 2003

Thailand

1 August 2004

United Kingdom of Great Britain and Northern Ireland — extended to the following territory:

1 June 2003

   (a)  the Isle of Man

1 November 2003

Uruguay

1 April 2004

Venezuela

1 December 1998

 

Schedule 3        Forms

(subregulation 3 (2))

Form 1        Heading of documents for use in court proceedings

(regulation 3A)

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)

___________________________________________________________

omit if inapplicable

Form 2        Affidavit

(paragraphs 14 (2A) (b), 14 (2D) (b), 14 (2E) (b), 15 (2A) (b), 15 (2C) (b), 15 (2D) (b), 20 (2A) (b), 20 (2D) (b), 20 (2E) (b), 22 (2A) (b), 22 (2C) (b) and 22 (2D) (b))

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.

SWORN by the deponent(s)

at (insert place where declaration made)

on (insert date of declaration)

...........................................................

(signature(s) of deponent(s))

 

...................................................................................

(name of deponent(s))

 

...................................................................................

(title or position of deponent(s))

BEFORE ME:

...................................................................................

(signature of person before whom affidavit is sworn)

 

...................................................................................

(name of signatory)

 

...................................................................................

(title or position of signatory)

___________________________________________________________

omit if inapplicable

Form 3        Application for order

(paragraphs 14 (2A) (a), 15 (2A) (a), 20 (2A) (a) and 22 (2A) (a))

(insert heading for document in accordance with Form 1)

Application for order under regulation 14*/15*/20*/22*

1              Identity of the child and his or her parents

1.1           Child

Surname:

Forenames:

Sex:

Age:

Date and place of birth:

Father’s surname:

Other names:

Mother’s maiden surname:

Other names:

1.2           Applicant(s)

2.1     Mother:

Surname:

Other names:

Occupation:

Address:

2.2     Father:

Surname:

Other names:

Occupation:

Address:

2              Order sought

Under regulation 14 of the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998, application is made for an order for the adoption of (insert forename(s) and surname(s) of child), an Australian child, into (insert name of Convention country), a Convention country.

OR

Under regulation 15 of the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998, application is made for an order for the adoption in Australia of (insert forename(s) and surname(s) of child) from (insert name of Convention country), a Convention country.

OR

Under regulation 20 of the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998, application is made for an order terminating the legal relationship between (insert forename(s) and surname(s) of child) and his*/her* pre-adoption parents.

OR

Under regulation 22 of the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998, application is made for a declaration by the court that the adoption of*/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.

3              Attachments to applications made under regulation       14*/15*/20*

(for an application under regulation 14 or 15)

The following documents are attached:

                (a)    the report prepared on the applicant(s) by the Central Authority of the receiving State under Article 15 of the Convention on Protection of Children and Cooperation in respect of Intercountry Adoption; and

               (b)    the report prepared on the child by the Central Authority of the State of origin under Article 16 of that Convention.

OR

(for an application under regulation 20)

A copy of the adoption compliance certificate issued in the Convention country, and in force for the adoption, is attached.

4              Any other matters in relation to this application

(information may be written here or in an attachment to this application)

DATED.................................

..............................................

(signature(s) of applicant(s))

......................................................................................................................

(if the applicant is the State Central Authority, the title or position of the Authority)

Affidavit

(insert affidavit in accordance with Form 2)

___________________________________________________________

omit if inapplicable

Form 4        Notice of application

(subregulations 14 (2C), 20 (2C) and 22 (2B))

Family Law (Hague Convention on Intercountry Adoption) Regulations 1998

Notice of application for order under regulation 14*/20*/22*

(insert title of State Central Authority) for (insert name of State or Territory)

TO: (insert full name and title of person to whom notice is given)

OF:  (insert address of person)

THE ATTACHED APPLICATION is set down for hearing by the (insert name of court) at (insert place where application is to be heard) on (insert date of hearing) at (insert time of hearing).

IF YOU WISH the court to make an order, or orders, other than the order sought in the attached application, you may, no later than 5 working days before the hearing, file with the court a brief statement that:

                (a)    is mentioned in paragraph 14 (2D) (a)*/20 (2D) (a)*/
22 (2C) (a)* of the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 of the matters on which you rely in support of the court making the order*/orders* that you seek; and

               (b)    includes an affidavit in accordance with paragraph
14 (2D) (b)*/20 (2D) (b)*/22 (2C) (b)* of those Regulations.

IF YOU DO NOT RESPOND TO THE APPLICATION, OR DO NOT APPEAR AT THE HEARING, the court may make the order*/orders* sought in the attached application, or a similar order*/similar orders*, without considering what you have to say in response to the application, or in your absence.

DATED...............................................

............................................................

(signature of State Central Authority)

......................................................................................................................

(name of State Central Authority)

Attachment

The application under regulation 14*/20*/22* (including any attachment to the application) to which the notice relates is attached.

___________________________________________________________

omit if inapplicable

Form 5        Response to application

(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)

DATED..................................

................................................

(signature(s) of respondent(s))

..........................................................................

(name of respondent(s))

......................................................................................................................

(title or position of respondent(s))

Affidavit

(insert affidavit in accordance with Form 2)

___________________________________________________________

omit if inapplicable

Form 6        Reply to response to 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)

DATED.................................

..............................................

(signature(s) of applicant(s))

.................................................................................

(name of applicant(s))

......................................................................................................................

(title or position of applicant(s))

Affidavit

(insert affidavit in accordance with Form 2)

___________________________________________________________

omit if inapplicable

Form 7        Adoption order — Australian child

(subregulation 14 (2F))

(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 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 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

(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:

(insert surname(s) approved by the court)

DATED:  (insert date of declaration)

 

 

 

(Seal of court)

___________________________________________________________

* omit if inapplicable


Notes to the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998

Note 1

The Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (in force under the Family Law Act 1975) as shown in this compilation comprise Statutory Rules 1998 No. 249 amended as indicated in the Tables below.

Under the Legislative Instruments Act 2003, which came into force on 1 January 2005, it is a requirement for all non-exempt legislative instruments to be registered on the Federal Register of Legislative Instruments.  From 1 January 2005 the Statutory Rules series ceased to exist and was replaced with Select Legislative Instruments (SLI series). Numbering conventions remain the same, ie Year and Number.

Table of Instruments

Year and
number

Date of notification
in Gazette or FRLI registration

Date of
commencement

Application, saving or
transitional provisions

1998 No. 249

6 Aug 1998

1 Dec 1998 (see ATS 1998 No. 21) (a)

 

1999 No. 283

2 Dec 1999

2 Dec 1999

2000 No. 312

29 Nov 2000

29 Nov 2000

2003 No. 341

23 Dec 2003

23 Dec 2003

2006 No. 96

8 May 2006 (see F2006L01324)

9 May 2006

(a)    Regulation 2 of Statutory Rules 1998 No. 249 provides as follows:

The Regulations commence on the day the Convention enters into force for Australia. 

The Convention on Protection of Children and Co-operation in respect of Intercountry Adoption was:

         Signed for Australia 25 August 1998.  Instrument of ratification deposited for Australia 25 August 1998, with declarations pursuant to Articles 6, 22.4, 23.2, 25 and 45 and in relation to the October 1994 Special Commission on Implementation recommendation in respect of refugee children.  Entry into force for Australia 1 December 1998.  Applicable to all the territorial units of Australia.

Table of Amendments

ad. = added or inserted      am. = amended      rep. = repealed      rs. = repealed and substituted

Provision affected

How affected

Part 1

 

Heading to r. 3......................

rs. 1999 No. 283

R. 3.........................................

am. 1999 No. 283

R. 3A.......................................

ad. 1999 No. 283

R. 4.........................................

am. 1999 No. 283

Part 2

 

R. 14.......................................

am. 1999 No. 283

R. 15.......................................

am. 1999 No. 283

R. 20.......................................

am. 1999 No. 283

R. 22.......................................

am. 1999 No. 283

Part 5

 

R. 24A....................................

ad. 1999 No. 283

R. 24B....................................

ad. 1999 No. 283

R. 24C....................................

ad. 1999 No. 283

R. 24D....................................

ad. 1999 No. 283

R. 24E....................................

ad. 1999 No. 283

R. 24F....................................

ad. 1999 No. 283

Part 6

 

R. 34.......................................

am. 1999 No. 283

Schedule 2

 

Schedule 2............................

rs. 1999 No. 283; 2000 No. 312; 2003 No. 341

 

am. 2006 No. 96

Schedule 3

 

Schedule 3............................

ad. 1999 No. 283

Form 1...............................

ad. 1999 No. 283

Form 2...............................

ad. 1999 No. 283

Form 3...............................

ad. 1999 No. 283

Form 4...............................

ad. 1999 No. 283

Form 5...............................

ad. 1999 No. 283

Form 6...............................

ad. 1999 No. 283

Form 7...............................

ad. 1999 No. 283

Form 8...............................

ad. 1999 No. 283

Form 9...............................

ad. 1999 No. 283

Form 10.............................

ad. 1999 No. 283