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SR 1986 No. 85 Regulations as amended, taking into account amendments up to SLI 2007 No. 213
Administered by: Attorney-General's
Registered 24 Jul 2007
Start Date 24 Jul 2007

Family Law (Child Abduction Convention) Regulations 1986

Statutory Rules 1986 No. 85 as amended

made under the

This compilation was prepared on 24 July 2007
taking into account amendments up to SLI 2007 No. 213

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]                                     4

                      1A     Purpose                                                                          4

                        2     Interpretation                                                                   4

                        4     Meaning of rights of custody                                             6

                        5     Commonwealth Central Authority — duties, powers and functions       7

                        6     These Regulations do not affect other powers of, or rights of application to, a court       7

                        7     Immunity of Commonwealth Central Authority etc in respect of orders to pay costs       8

                        8     State Central Authority — appointment                              8

                        9     State Central Authority — duties, powers and functions      8

                       10     Convention countries                                                        8

Part 2                    Requests to Central Authorities, except for access     

                       11     Request for return of child abducted from Australia            10

                       13     Request for return of child abducted to Australia               11

Part 3                    Court applications, except for access                

                       14     Applications to court                                                      13

                    14A     Further applications to court                                            14

                       15     Orders                                                                          15

                       16     Obligation to make a return order                                     15

                       17     Declaration that removal or retention was wrongful             17

                       18     Effect of other custody orders in Australia or overseas       18

                       19     When a court not to make certain orders                          18

                    19A     Discharge of return order                                                 19

                       20     Arrangements for return of child                                       19

                       21     Security for costs etc                                                     20

Part 4                    Requests to Central Authorities and court applications for access 

                       23     Request for access to child in convention country             21

                       24     Request for access to child in Australia                           22

                       25     Application for access to child in Australia                       22

                    25A     Orders                                                                          23

Part 5                    General                                                                        

                       26     Reports by family consultants                                         25

                       27     Service of notice of certain applications                            26

                       28     Change of venue                                                            26

                       29     Evidentiary provisions                                                     27

                       30     Costs of applications                                                      29

                       31     Warrants                                                                       30

Schedule 1             Convention on the civil aspects of international child abduction 31

Schedule 2             Convention countries                                                   45

Schedule 3             Forms                                                                          50

Form 1                     Request for return of child abducted from Australia            50

Form 2                     Application initiating proceedings (other than for access)   54

Form 2A                  Answer/*and cross application                                        57

Form 2B                  Reply                                                                            60

Form 2C                  Warrant for the apprehension or detention of a child          61

Form 2D                  Application to discharge return order                                62

Form 3                     Request for access to a child in a convention country        65

Form 4                     Application initiating proceedings for access                     68

Form 4A                  Answer/*and cross application (access)                           72

Form 4B                  Reply (access)                                                              74

Notes                                                                                                          76

 

 


Part 1                 Preliminary

  

1              Name of Regulations [see Note 1]

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

1A           Purpose

         (1)   The purpose of these Regulations is to give effect to section 111B of the Act.

         (2)   These Regulations are intended to be construed:

                (a)    having regard to the principles and objects mentioned in the preamble to and Article 1 of the Convention; and

               (b)    recognising, in accordance with the Convention, that the appropriate forum for resolving disputes relating to a child’s care, welfare and development is ordinarily the child’s country of habitual residence; and

                (c)    recognising that the effective implementation of the Convention depends on the reciprocity and mutual respect between judicial or administrative authorities (as the case may be) of convention countries.

2              Interpretation

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

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

Central Authority has the meaning it has in the Convention.

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

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

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

convention country means a country that under regulation 10 is a convention country.

court means a court having jurisdiction under paragraph 39 (5) (d), 39 (5A) (a) or 39 (6) (d) of the Act.

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

Registrar means:

                (a)    in relation to the Family Court, or the Family Court of Western Australia — the Registrar, or a Deputy Registrar, of the court; and

               (b)    in relation to any other court — the principal officer of the other court.

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

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

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

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

rights of custody has the meaning given in regulation 4.

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

the Act means the Family Law Act 1975.

Note   applicable Rules of Court is defined in subsection 4 (1) of the Act.

      (1A)   A reference in these Regulations to a form by number is a reference to the form so numbered in Schedule 3.

      (1B)   Unless the contrary intention appears, an expression that is used in these Regulations and in the Convention has the same meaning in these regulations as in the Convention.

      (1C)   A reference in these Regulations to a child who is removed:

                (a)    from Australia to a convention country; or

               (b)    from a convention country to another convention country or to Australia;

includes a reference to the removal of the child to the convention country concerned or to Australia, as the case may be, whether or not the child is first removed to another country.

         (2)   The removal or retention of a child is wrongful in the circumstances mentioned in Article 3 of the Convention.

4              Meaning of rights of custody

         (1)   For these Regulations, a person, institution or other body has rights of custody in relation to a child if:

                (a)    the child was habitually resident in Australia or in a convention country immediately before his or her removal or retention; and

               (b)    rights of custody in relation to the child are attributed to the person, institution or other body, either jointly or alone, under a law in force in Australia or in the convention country in which the child habitually resided immediately before his or her removal or retention.

         (2)   For the purposes of subregulation (1), rights of custody include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child.

         (3)   For the purposes of this regulation, rights of custody may arise:

                (a)    by operation of law; or

               (b)    by reason of a judicial or administrative decision; or

                (c)    by reason of an agreement having legal effect under a law in force in Australia or a convention country.

5              Commonwealth Central Authority — duties, powers and functions

         (1)   In addition to the other functions conferred on the Commonwealth Central Authority by these Regulations, the functions of the Commonwealth Central Authority are:

                (a)    to do, or co‑ordinate the doing of, anything that is necessary to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under the Convention; and

               (b)    to advise the Attorney‑General, either on the initiative of the Commonwealth Central Authority or on a request made to that Authority by the Attorney‑General, on all matters that concern, or arise out of performing, those obligations, including any need for additional legislation required for performing those obligations; and

                (c)    to do everything that is necessary or appropriate to give effect to the Convention in relation to the welfare of a child on the return of the child to Australia.

         (2)   The Commonwealth Central Authority has all the duties, may exercise all the powers, and shall perform all the functions, that a Central Authority has under the Convention.

         (3)   The Commonwealth Central Authority must perform its functions and exercise its powers as quickly as a proper consideration of each matter relating to the performance of a function or the exercise of a power allows.

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

         (1)   These Regulations are not intended to prevent a person, institution or other body that has rights of custody in relation to a child for the purposes of the Convention from applying to a court if the child is removed to, or retained in, Australia in breach of those rights.

         (2)   These Regulations are not to be taken as preventing a court from making an order at any time under Part VII of the Act or under any other law in force in Australia for the return of a child.

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

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

8              State Central Authority — appointment

         (1)   The Attorney‑General may appoint a person to be the Central Authority of a State or Territory for the purposes of these Regulations.

         (2)   The power to appoint a person under subregulation (1) includes a power to appoint any person from time to time holding, occupying or performing the duties of a specified office or position of the Commonwealth or of a State or Territory.

         (3)   An appointment of a person under subregulation (1) may be expressed to have effect only in such circumstances as are specified in the instrument of appointment.

9              State Central Authority — duties, powers and functions

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

10            Convention countries

                Subject to Article 40 of the Convention, each of the following countries is a convention country:

                (a)    a country specified in Schedule 2, being a country:

                          (i)    as between Australia and which the Convention entered into force on the date specified in column 2 in relation to that country; and

                         (ii)    that has acceded to the Convention with reservations in accordance with Article 42 of the Convention in respect of any provisions specified in column 3 in relation to that country;

               (b)    any other country in respect of which the Convention has entered into force for Australia.


 

Part 2                 Requests to Central Authorities, except for access

  

11            Request for return of child abducted from Australia

         (1)   A person, institution or other body that claims under a law in force in Australia to have rights of custody in relation to a child who, in breach of those rights, has been:

                (a)    removed from Australia to a convention country; or

               (b)    retained in a convention country;

may request a responsible Central Authority to have the claim sent to the Central Authority in the country to which the child has been removed or in which the child is retained.

         (2)   A request must be:

                (a)    in accordance with Form 1; and

               (b)    in accordance with the Convention.

         (3)   A State Central Authority that is satisfied that a request received by it complies with subregulation (2) must send the request to the Commonwealth Central Authority.

         (4)   If the Commonwealth Central Authority is satisfied that a request received by it complies with subregulation (2), the Commonwealth Central Authority must, on behalf of the person, institution or other body, take any action required to be taken by a Central Authority under the Convention.

         (5)   A responsible Central Authority that is satisfied that a request received by it does not comply with subregulation (2) may, by notice in writing, refuse to accept the request.

         (6)   A notice under subregulation (5) from the Commonwealth Central Authority must:

                (a)    be sent to the person, institution or other body that made the request; and

               (b)    if the Commonwealth Central Authority received the request from a State Central Authority — be sent to the State Central Authority; and

                (c)    include the reason for the refusal.

         (7)   A notice under subregulation (5) from a State Central Authority must:

                (a)    be sent to the person, institution or other body that made the request; and

               (b)    include the reason for the refusal.

13            Request for return of child abducted to Australia

         (1)   The Commonwealth Central Authority must take action to secure the return of a child under the Convention if:

                (a)    it receives a request from:

                          (i)    a person, institution or other body that claims to have rights of custody in relation to the child who, in breach of those rights, has been removed from a convention country to Australia or has been retained in Australia; or

                         (ii)    a Central Authority on behalf of a person, institution or other body mentioned in subparagraph (i); and

               (b)    it is satisfied that the request is in accordance with the Convention.

         (2)   The Commonwealth Central Authority may, by notice in writing, refuse to accept a request received by it if it is satisfied that the request is not in accordance with the Convention.

         (3)   A notice under subregulation (2) must:

                (a)    be sent to the person, institution or other body that made the request; and

               (b)    if the Commonwealth Central Authority received the request from a Central Authority — be sent to the Central Authority; and

                (c)    include the reason for the refusal.

         (4)   For subregulation (1), the action taken may include any of the following:

                (a)    transferring the request to a State Central Authority;

               (b)    seeking an amicable resolution of the differences, in relation to the removal or retention of the child, between the person making the request for the child’s return and the person opposing the child’s return;

                (c)    seeking the voluntary return of the child;

               (d)    applying for an order under Part 3.


 

Part 3                 Court applications, except for access

  

14            Applications to court

         (1)   If a child is removed from a convention country to, or retained in, Australia:

                (a)    the responsible Central Authority may apply to the court, in accordance with Form 2, for any of the following orders:

                          (i)    a return order for the child;

                         (ii)    an order for the delivery of the passport of the child, and the passport of any other relevant person, to the responsible Central Authority, a member of the Australian Federal Police or a person specified in the order, on conditions appropriate to give effect to the Convention;

                         (iii)    an order for the issue of a warrant mentioned in regulation 31;

                        (iv)    an order directing that:

                                   (A)     the child not be removed from a specified place; and

                                   (B)     members of the Australian Federal Police prevent the child being removed from that place;

                         (v)    an order requiring that arrangements be made (as necessary) to place the child with an appropriate person, institution or other body to secure the welfare of the child, until a request under regulation 13 is determined;

                        (vi)    any other order that the responsible Central Authority considers appropriate to give effect to the Convention; or

               (b)    a person, institution or other body that has rights of custody in relation to the child for the purposes of the Convention may apply to the court, in accordance with Form 2, for an order mentioned in subparagraph (a) (i), (ii), (iii), (iv) or (v).

         (2)   If the responsible Central Authority, or a person, institution or other body that has rights of custody in relation to a child for the purposes of the Convention, has reasonable grounds to believe that there is an appreciable possibility or a threat that the child will be removed from Australia, the responsible Central Authority or person, institution or other body may:

                (a)    apply to the court, in accordance with Form 2, for an order for the issue of a warrant mentioned in regulation 31; or

               (b)    apply to the court for an order for the delivery of the passport of the child, and the passport of any other relevant person, to the responsible Central Authority, a member of the Australian Federal Police or a person specified in the order, on conditions appropriate to give effect to the Convention.

         (3)   If a child is wrongfully removed from Australia to, or retained in, a convention country, the responsible Central Authority may apply to the court, in accordance with Form 2, for:

                (a)    an order that the responsible Central Authority considers necessary or appropriate to give effect to the Convention in relation to the welfare of the child after his or her return to Australia; or

               (b)    any other order that the responsible Central Authority considers appropriate to give effect to the Convention.

         (4)   If a copy of an application made under subregulation (1), (2) or (3) is served on a person:

                (a)    the person must file an answer, or an answer and a cross‑application, in accordance with Form 2A; and

               (b)    the applicant may file a reply in accordance with Form 2B.

14A         Further applications to court

         (1)   A responsible Central Authority or person, institution or other body that has made an application under subregulation 14 (1), (2) or (3) may make a further application for an order mentioned in those subregulations.

         (2)   An application under subregulation (1) must be in accordance with Form 2 in Schedule 2 to the Family Law Rules 2004.

15            Orders

         (1)   If a court is satisfied that it is desirable to do so, the court may, in relation to an application made under regulation 14:

                (a)    make an order of a kind mentioned in that regulation; and

               (b)    make any other order that the court considers to be appropriate to give effect to the Convention; and

                (c)    include in an order to which paragraph (a) or (b) applies a condition that the court considers to be appropriate to give effect to the Convention.

         (2)   A court must, so far as practicable, give to an application such priority as will ensure that the application is dealt with as quickly as a proper consideration of each matter relating to the application allows.

         (4)   If an application made under regulation 14 is not determined by a court within the period of 42 days commencing on the day on which the application is filed:

                (a)    the responsible Central Authority or Article 3 applicant who made the application may ask the Registrar of the court to state in writing the reasons for the application not having been determined within that period; and

               (b)    as soon as practicable after being asked, the Registrar must give the statement to the responsible Central Authority or Article 3 applicant.

16            Obligation to make a return order

         (1)   If:

                (a)    an application for a return order for a child is made; and

               (b)    the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child’s removal or retention; and

                (c)    the responsible Central Authority or Article 3 applicant satisfies the court that the child’s removal or retention was wrongful under subregulation (1A);

the court must, subject to subregulation (3), make the order.

      (1A)   For subregulation (1), a child’s removal to, or retention in, Australia is wrongful if:

                (a)    the child was under 16; and

               (b)    the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; and

                (c)    the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and

               (d)    the child’s removal to, or retention in, Australia is in breach of those rights of custody; and

                (e)    at the time of the child’s removal or retention, the person, institution or other body:

                          (i)    was actually exercising the rights of custody (either jointly or alone); or

                         (ii)    would have exercised those rights if the child had not been removed or retained.

         (2)   If:

                (a)    an application for a return order for a child is made; and

               (b)    the application is filed more than one year after the day on which the child was first removed to, or retained in, Australia; and

                (c)    the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment;

the court must, subject to subregulation (3), make the order.

         (3)   A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:

                (a)    the person, institution or other body seeking the child’s return:

                          (i)    was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or

                         (ii)    had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or

               (b)    there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or

                (c)    each of the following applies:

                          (i)    the child objects to being returned;

                         (ii)    the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;

                         (iii)    the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or

               (d)    the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.

         (4)   For the purposes of subregulation (3), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention.

         (5)   The court is not precluded from making a return order for the child only because a matter mentioned in subregulation (3) is established by a person opposing return.

17            Declaration that removal or retention was wrongful

         (1)   On application, a court may by order declare that:

                (a)    the removal of a child from Australia to a convention country; or

               (b)    the retention of a child in a convention country;

was wrongful within the meaning of Article 3 of the Convention.

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

18            Effect of other custody orders in Australia or overseas

         (1)   The following rules apply to the hearing of an application made under subregulation 14 (1):

                (a)    the court must not refuse to make a return order for the child only because there is in force or enforceable in Australia an order relating to the custody of the child;

               (b)    the court may take into account the reasons for the making of any order relating to the custody of the child;

                (c)    an order for the return of the child does not determine the merits of any custody issue in relation to the child.

         (2)   In this regulation:

custody, in relation to a child, includes:

                (a)    guardianship of the child; and

               (b)    responsibility for the long‑term or day‑to‑day care, welfare and development of the child; and

                (c)    responsibility as the person or persons with whom the child is to live.

19            When a court not to make certain orders

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

19A         Discharge of return order

         (1)   If a court makes a return order, the responsible Central Authority, the Article 3 applicant or a respondent to the proceeding may apply to the court, in accordance with Form 2D, for the discharge of the order.

         (2)   The court may make an order discharging a return order, or a part of a return order, only if it is satisfied that:

                (a)    all the parties consent to the return order being discharged; or

               (b)    since the return order was made, circumstances have arisen that make it impracticable for the order to be carried out; or

                (c)    exceptional circumstances exist that justify the return order being discharged; or

               (d)    the day on which the application for the discharge of the return order was made is more than 1 year after the return order was made or any appeal in relation to the return order was determined.

         (3)   In considering whether to make an order discharging a return order, the court must have regard to section 111CE of the Act if the convention country from which the child was removed is also a Convention country within the meaning of subsection 111CA (1) of the Act.

20            Arrangements for return of child

         (1)   If the responsible Central Authority applies to the court for a return order for a child, and the order is made, the responsible Central Authority must coordinate the making of the arrangements that are necessary to give effect to the order.

         (2)   If:

                (a)    a return order for a child is made; and

               (b)    within 7 days after the order is made, the responsible Central Authority or Article 3 applicant has not been notified that the order has been stayed;

the child must be returned in accordance with the order.

         (3)   Subregulation (1) does not require the Commonwealth Central Authority or the State Central Authority to make or pay for the arrangements that are necessary to give effect to the order.

21            Security for costs etc

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


 

Part 4                 Requests to Central Authorities and court applications for access

  

23            Request for access to child in convention country

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

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

         (2)   A request must be:

                (a)    in accordance with Form 3; and

               (b)    in accordance with the Convention.

         (3)   A State Central Authority that is satisfied that a request received by it complies with subregulation (2) must send the request to the Commonwealth Central Authority.

         (4)   If the Commonwealth Central Authority is satisfied that a request received by it complies with subregulation (2), it must take any action required to be taken by a Central Authority under the Convention.

         (5)   A responsible Central Authority that is satisfied that a request received by it does not comply with subregulation (2) may, by notice in writing, refuse to accept the request.

         (6)   A notice under subregulation (5) from the Commonwealth Central Authority must:

                (a)    be sent to the person who made the request; and

               (b)    if the Commonwealth Central Authority received the request from a State Central Authority — be sent to the State Central Authority; and

                (c)    include the reason for the refusal.

         (7)   A notice under subregulation (5) from a State Central Authority must:

                (a)    be sent to the person who made the request; and

               (b)    include the reason for the refusal.

24            Request for access to child in Australia

         (1)   The Commonwealth Central Authority must take action to establish, organise or secure the effective exercise of rights of access to a child in Australia if:

                (a)    it receives a request from a Central Authority on behalf of a person who claims:

                          (i)    to have rights of access to the child under a law in force in a convention country; and

                         (ii)    that those rights have been breached; and

               (b)    it is satisfied that the request is in accordance with the Convention.

         (2)   The Commonwealth Central Authority may, by notice in writing, refuse to accept a request received by it if it is satisfied that the request is not in accordance with the Convention.

         (3)   A notice under subregulation (2) must:

                (a)    be sent to the Central Authority that sent the request; and

               (b)    include the reason for the refusal.

         (4)   For subregulation (1), the action taken may include any of the following:

                (a)    transferring the request to a State Central Authority;

               (b)    applying to a court under regulation 25 for an order that is necessary or appropriate to establish, organise or secure the effective exercise of the rights of access to which the request relates;

                (c)    seeking an amicable resolution in relation to the rights of access to the child.

25            Application for access to child in Australia

         (1)   The responsible Central Authority may apply to the court, in accordance with Form 4, for any of the following orders:

                (a)    an order specifying with whom a child is to spend time or communicate;

               (b)    an order for the issue of a warrant mentioned in regulation 31;

                (c)    any other order that the responsible Central Authority considers appropriate to give effect to the Convention.

         (2)   If a copy of an application made under subregulation (1) is served on a person:

                (a)    the person must file an answer, or an answer and a cross‑application, in accordance with Form 4A; and

               (b)    the responsible Central Authority may file a reply in accordance with Form 4B.

25A         Orders

         (1)   If a court is satisfied that it is desirable to do so, the court may, in relation to an application made under subregulation 25 (1):

                (a)    make an order of a kind mentioned in that regulation; and

               (b)    make any other order that the court considers to be appropriate to give effect to the Convention; and

                (c)    include in an order to which paragraph (a) or (b) applies a condition that the court considers to be appropriate to give effect to the Convention.

         (2)   In determining an application made under subregulation 25 (1) seeking an order of the kind mentioned in paragraph 25 (1) (a), the court must have regard to the matters set out in section 111CW of the Act if the convention country under the laws of which the person mentioned in paragraph 24 (1) (a) claims to have access rights to the child is also a Convention country within the meaning of subsection 111CA (1) of the Act.

         (3)   The court may make an order under subregulation (1) regardless of:

                (a)    whether an order or determination (however described) has been made under a law in force in another convention country about rights of access to the child concerned; or

               (b)    if the child was removed to Australia — when that happened; or

                (c)    whether the child has been wrongfully removed to, or retained in, Australia.

         (4)   If the responsible Central Authority applies to the court for an order under subregulation (1), and the order is made, the Commonwealth Central Authority or the State Central Authority is not required to make or pay for the arrangements that are necessary to give effect to the order.


 

Part 5                 General

  

26            Reports by family consultants

         (1)   In proceedings under these Regulations in a court, the court may:

                (a)    direct a family consultant to report to the court on such matters that are relevant to the proceedings as the court considers to be appropriate; and

               (b)    adjourn the proceedings until the report is made.

         (2)   A family consultant may include in a report, in addition to the matters required to be included in the report, any other matter that relates to the care, welfare or development of the child.

         (3)   The court may make such orders, or give such further directions, as it considers appropriate in relation to the preparation of the report including, if the court considers it appropriate, orders or directions in relation to the attendance on the family consultant of a party to the proceedings or of the child.

         (4)   If a person fails to comply with any order or direction under subregulation (3), the family consultant must report the failure to the court.

         (5)   If, under subregulation (4), a family consultant reports to the court a failure of the kind referred to in that subsection, the court may give such further directions in relation to the preparation of the report as the court considers appropriate.

         (6)   A report made to the court in accordance with a direction given under this regulation may be received in evidence in any proceedings under these Regulations.

         (7)   The court may direct the Commonwealth Central Authority or a State Central Authority to inform a Central Authority in a convention country about a matter that:

                (a)    relates to the welfare of the child; and

               (b)    under subregulation (2) — is included in a report.

27            Service of notice of certain applications

         (1)   Subject to subregulation (2), notice of an application under regulation 14, 19A or 25 that includes a copy of the application must be served by the applicant in accordance with the applicable Rules of Court:

                (a)    for an application under regulation 14 — on the person whom the applicant claims has wrongfully removed or retained the child who is the subject of the application; and

               (b)    for an application under regulation 19A — on any other party to the proceeding for return of the child; and

                (c)    for an application under regulation 25 — on the person, institution or other body in possession of the child who is the subject of the application.

         (2)   In accordance with the applicable Rules of Court, the court to which an application referred to in subregulation (1) is made may dispense with service of notice of the application under that subregulation.

28            Change of venue

         (1)   This regulation applies if:

                (a)    an application (the original application) is made to a court in a State or Territory (the first jurisdiction) under regulation 14, 19A or 25; and

               (b)    the child who is the subject of the original application is located in another State or Territory (the second jurisdiction) before the application is determined.

      (1A)   The Central Authority in the second jurisdiction may make a corresponding application (a later application) to another registry of the court, or to another court, in the second jurisdiction.

         (2)   If a later application is made, the applicant for the later application must:

                (a)    refer in the later application to the original application; and

               (b)    as soon as practicable, inform the Registrar of the court in which the original application was filed, in writing, of the later application.

      (2A)   As soon as practicable after receiving information under paragraph (2) (b), the Registrar of the court in which the original application was filed must transfer all records and other documents filed in the court relating to the original application to the Registrar of the court in which the later application is made.

         (3)   Subject to subregulation (4), proceedings in relation to an original application are taken to have been discontinued when a later application is made.

         (4)   If an order is made before proceedings are discontinued by operation of subregulation (3), the order remains in force until an order is made in relation to a later application.

         (5)   In proceedings in relation to a later application, the court may have regard to:

                (a)    a record, or another document filed in the court, in relation to an original application; and

               (b)    evidence given to a court in relation to an original application.

29            Evidentiary provisions

         (1)   This regulation applies in a proceeding in a court under regulation 14, 19A or 25 in which the applicant is a responsible Central Authority.

         (2)   The application under regulation 14, 19A or 25, or a request under regulation 13, 24 or 25 relating to that application, or any document attached to or given in support of that application or request, is admissible as evidence of the facts stated in that application, request or document.

         (3)   An affidavit of a witness who resides outside Australia that is filed in the proceeding is admissible as evidence even if the witness does not attend the proceeding for cross‑examination.

         (4)   A statement contained in a document that claims:

                (a)    to set out or summarise evidence given in a proceeding in a court in a convention country, or before a competent authority of that country, in relation to the custody of a child and to have been signed by the person before whom the evidence was given; or

               (b)    to set out or summarise evidence taken in a convention country for the purpose of a proceeding under these Regulations (whether in response to a request made by the court or otherwise) and to have been signed by the person before whom the evidence was taken; or

                (c)    to have been received as evidence in a proceeding in a court in a convention country or before a competent authority of that country in relation to the custody of a child and to have been signed by a judge, an officer of the court or that authority;

is admissible as evidence of any fact stated in the document to the same extent as oral evidence of that fact, without proof of that person’s signature or official position.

         (5)   The court may take judicial notice of the following matters:

                (a)    a law in force in a convention country;

               (b)    a decision of a judicial or administrative character made by a judicial or administrative authority of a convention country.

         (6)   A document that claims:

                (a)    to be an order, or a copy of an order, of a court in a convention country, or a decision of a competent authority of that country, in relation to the custody of a child; and

               (b)    to have been signed by a judge, an officer of the court or that authority;

is admissible as evidence of that order or decision without proof of that person’s signature or official position.

         (7)   In this regulation:

custody, in relation to a child, includes:

                (a)    guardianship of the child; and

               (b)    responsibility for the long‑term or day‑to‑day care, welfare and development of the child; and

                (c)    responsibility as the person or persons with whom the child is to live.

30            Costs of applications

         (1)   This regulation applies if:

                (a)    either:

                          (i)    a responsible Central Authority has applied to the court for an order in relation to a child under Part 3 or 4; or

                         (ii)    an Article 3 applicant has applied to the court for an order in relation to a child under Part 3; and

               (b)    the court makes an order under regulation 15, 17, 19A, 25A or 26.

         (2)   The responsible Central Authority may apply to the court for an order that the person who removed or retained the child, or who prevented the exercise of rights of access to the child, must pay to the responsible Central Authority the costs of the application mentioned in subregulation (3).

         (3)   For subregulation (2), the costs are the necessary expenses incurred by the responsible Central Authority, including the following:

                (a)    costs incurred in locating the child;

               (b)    costs of legal representation;

                (c)    costs incurred in relation to the attendance by the child or an interested party at a family consultant for the preparation of a report by that consultant;

               (d)    costs incurred in coordinating the making of arrangements for the return of the child.

         (4)   The Article 3 applicant may apply to the court for an order that the person who removed or retained the child, or who prevented the exercise of rights of access to the child, must pay to the Article 3 applicant the costs of the application mentioned in subregulation (5).

         (5)   For subregulation (4), the costs are the necessary expenses incurred by the Article 3 applicant, including:

                (a)                travelling expenses; and

               (b)    the costs mentioned in paragraphs (3) (a) to (c).

31            Warrants

                For subparagraph 14 (1) (a) (iii) and paragraphs 14 (2) (a) and 25 (1) (b), a warrant:

                (a)    authorises a person named or described in the warrant, with such assistance as is necessary and reasonable and, if necessary and reasonable, by force:

                          (i)    to find and recover the child; and

                         (ii)    if the person reasonably believes that the child is in, or on, a vehicle, vessel, aircraft or premises and the circumstances are so serious and urgent that the entry and search of the vehicle, vessel, aircraft or premises is justified:

                                   (A)     to stop, enter and search the vehicle, vessel or aircraft; or

                                   (B)     to enter and search the premises; and

                         (iii)    to deliver the child to the person named in the warrant; and

               (b)    must be in accordance with Form 2C.

 


Schedule 1        Convention on the civil aspects of international child abduction

(regulation 2)

  

The States signatory to the present Convention,

Firmly convinced that the interests of children are of paramount importance in matters relating to their custody,

Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access,

Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions—

CHAPTER I—SCOPE OF THE CONVENTION

Article 1

The objects of the present Convention are—

a     to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

b     to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.

Article 2

Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention.  For this purpose they shall use the most  expeditious procedures available.

Article 3

The removal or the retention of a child is to be considered wrongful where—

a     it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

b     at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub‑paragraph a above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

Article 4

The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights.  The Convention shall cease to apply when the child attains the age of 16 years.

Article 5

For the purposes of this Convention—

a     ‘rights of custody’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence;

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

CHAPTER II—CENTRAL AUTHORITIES

Article 6

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

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

Article 7

Central Authorities shall co‑operate with each other and promote co‑operation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention.

In particular, either directly or through any intermediary, they shall take all appropriate measures—

a     to discover the whereabouts of a child who has been wrongfully removed or retained;

b     to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures;

c     to secure the voluntary return of the child or to bring about an amicable resolution of the issues;

d     to exchange, where desirable, information relating to the social background of the child;

e     to provide information of a general character as to the law of their State in connection with the application of the Convention;

f      to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access;

g     where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers;

h     to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child;

i      to keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.

CHAPTER III—RETURN OF CHILDREN

Article 8

Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child’s habitual residence or to the Central Authority of any other Contracting State for assistance in securing the  return of the child.

The application shall contain—

a     information concerning the identity of the applicant, of the child and of the person alleged to have removed or retained the child;

b     where available, the date of birth of the child;

c     the grounds on which the applicant’s claim for return of the child is based;

d     all available information relating to the whereabouts of the child and the identity of the person with whom the child is presumed to be.

The application may be accompanied or supplemented by—

e     an authenticated copy of any relevant decision or agreement;

f      a certificate or an affidavit emanating from a Central Authority, or other competent authority of the State of the child’s habitual residence, or from a qualified person, concerning the relevant law of that State;

g     any other relevant document.

Article 9

If the Central Authority which receives an application referred to in Article 8 has reason to believe that the child is in another Contracting State, it shall directly and without delay transmit the application to the Central Authority of that Contracting State and inform the requesting Central Authority, or the applicant, as the case may be.

Article 10

The Central Authority of the State where the child is shall take or cause to be taken appropriate measures in order to obtain the voluntary return of the child.

Article 11

The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.

If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay.  If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be.

Article 12

Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.

Article 13

Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that—

a     the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

b     there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child  provided by the Central Authority or other competent authority of the child’s habitual residence.

Article 14

In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognized or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.

Article 15

The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention where such a decision  or determination may be obtained in that State.  The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.

Article 16

After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under  this Convention is not lodged within a reasonable time following receipt of the notice.

Article 17

The sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention, but the judicial or administrative authorities of the requested State may take account of the reasons for that decision in applying this Convention.

Article 18

The provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time.

Article 19

A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.

Article 20

The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.

CHAPTER IV—RIGHTS OF ACCESS

Article 21

An application to make arrangements for organizing or securing the effective exercise of rights of access may be presented to the Central Authorities of  the Contracting States in the same way as an application for the return of a child.

The Central Authorities are bound by the obligations of co‑operation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject.  The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights.

The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organizing or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject.

CHAPTER V—GENERAL PROVISIONS

Article 22

No security, bond or deposit, however described, shall be required to guarantee the payment of costs and expenses in the judicial or administrative proceedings falling within the scope of this Convention.

Article 23

No legalization or similar formality may be required in the context of this Convention.

Article 24

Any application, communication or other document sent to the Central Authority of the requested State shall be in the original language, and shall be accompanied by a translation into the official language or one of the official languages of the requested State or, where that is not feasible, a translation into French or English.

However, a Contracting State may, by making a reservation in accordance with Article 42, object to the use of either French or English, but not both, in any application, communication or other document sent to its Central Authority.

Article 25

Nationals of the Contracting States and persons who are habitually resident within those States shall be entitled in matters concerned with the application of this Convention to legal aid and advice in any other Contracting State on the same conditions as if they themselves were nationals of and habitually resident in that State.

Article 26

Each Central Authority shall bear its own costs in applying this Convention.

Central Authorities and other public services of Contracting States shall not impose any charges in relation to applications submitted under this Convention.  In particular, they may not require any payment from the applicant towards the costs and expenses of the proceedings or, where applicable, those arising from the participation of legal counsel or advisers.  However, they may require the payment of the expenses incurred or to be incurred in implementing the return of the child.

However, a Contracting State may, by making a reservation in accordance with Article 42, declare that it shall not be bound to assume any costs referred to in the preceding paragraph resulting from the participation of legal counsel or advisers or from court proceedings, except insofar as those costs may be covered by its system of legal aid and advice.

Upon ordering the return of a child or issuing an order concerning rights of access under this Convention, the judicial or administrative authorities may, where appropriate, direct the person who removed or retained the child, or who prevented the exercise of rights of access to pay necessary expenses incurred by or on behalf of the applicant, including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant, and those of returning the child.

Article 27

When it is manifest that the requirements of this Convention are not fulfilled or that the application is otherwise not well founded, a Central Authority is not bound to accept the application.  In that case, the Central Authority shall forthwith inform the applicant or the Central Authority through which the application was submitted, as the case may be, of its reasons.

Article 28

A Central Authority may require that the application be accompanied by a written authorization empowering it to act on behalf of the applicant, or to designate a representative so to act.

Article 29

This Convention shall not preclude any person, institution or body who claims that there has been a breach of custody or access rights within the meaning of Article 3 or 21 from applying directly to the judicial or administrative authorities of a Contracting State, whether or not under the provisions of this Convention.

Article 30

Any application submitted to the Central Authorities or directly to the judicial or administrative authorities of a Contracting State in accordance with the terms of this Convention, together with documents and any other information appended thereto or provided by a Central Authority, shall be admissible in the courts or administrative authorities of the Contracting States.

Article 31

In relation to a State which in matters of custody of children has two or more systems of law 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 the State of habitual residence shall be construed as referring to the law of the territorial unit in that State where the child habitually resides.

Article 32

In relation to a State which in matters of custody of children has two or more systems of law applicable to different categories of persons, 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 33

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

Article 34

This Convention shall take priority in matters within its scope over the Convention of 5 October 1961 concerning the powers of authorities and the law applicable in respect of the protection of minors, as between Parties to both Conventions.  Otherwise the present Convention shall not restrict the application of an international instrument in force between the State or origin and the State addressed or other law of the State addressed for the purposes of obtaining the return of a child who has been wrongfully removed or retained or of organizing access rights.

Article 35

This Convention shall apply as between Contracting States only to wrongful removals or retentions occurring after its entry into force in those States.

Where a declaration has been made under Article 39 or 40, the reference in the preceding paragraph to a Contracting State shall be taken to refer to the territorial unit or units in relation to which this Convention applies.

Article 36

Nothing in this Convention shall prevent two or more Contracting States, in order to limit the restrictions to which the return of the child may be subject, from agreeing among themselves to derogate from any provisions of this Convention which may imply such a restriction.

CHAPTER VI—FINAL CLAUSES

Article 37

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 Fourteenth Session.  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.

Article 38

Any other State may accede to the Convention.

The instrument of accession shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands.

The Convention shall enter into force for a State acceding to it on the first day of the third calendar month after the deposit of its instrument of accession.

The accession will have effect only as regards the relations between the acceding State and such Contracting States as will have declared their acceptance of the accession.  Such a declaration will also have to be made by any Member State ratifying, accepting or approving the Convention after an accession.  Such declaration shall be deposited at the Ministry of Foreign Affairs of the Kingdom of the Netherlands:  this Ministry shall forward, through diplomatic channels, a certified copy to each of the Contracting States.

The Convention will enter into force as between the acceding State and the State that has declared its acceptance of the accession on the first day of the third calendar month after the deposit of the declaration of acceptance.

Article 39

Any State may, at the time of signature, ratification, acceptance, approval or accession, declare that the Convention shall extend to all the territories for the international relations of which it is responsible, or to one or more of them.  Such a declaration shall take effect at the time the Convention enters into force for that State.

Such declaration, as well as any subsequent extension, shall be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands.

Article 40

If a Contracting State has two or more territorial units in which different systems of law are applicable in relation to matters dealt with in this 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.

Any such declaration shall be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands and shall state expressly the territorial units to which the Convention applies.

Article 41

Where a Contracting State has a system of government under which executive, judicial and legislative powers are distributed between central and other authorities within that State, its signature or ratification, acceptance or approval of, or accession to this Convention, or its making of any declaration in terms of Article 40 shall carry no implication as to the internal distribution of powers within the State.

Article 42

Any State may, not later than the time of ratification, acceptance, approval or accession, or at the time of making a declaration in terms of Article 39 or 40, make one or both of the reservations provided for in Article 24 and Article 26, third paragraph.  No other reservations shall be permitted.

Any State may at any time withdraw a reservation it has made.  The withdrawal shall be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands.

The reservation shall cease to have effect on the first day of the third calendar month after the notification referred to in the preceding paragraph.

Article 43

The Convention shall enter into force on the first day of the third calendar month after the deposit of the third instrument of ratification, acceptance, approval or accession referred to in Articles 37 and 38.

Thereafter the Convention shall enter into force—

1     for each State ratifying, accepting, approving or acceding to it subsequently, on the first day of the third calendar month after the deposit of its instrument of ratification, acceptance, approval or accession;

2     for any territory or territorial unit to which the Convention has been extended in conformity with Article 39 or 40, on the first day of the third calendar month after the notification referred to in that Article.

Article 44

The Convention shall remain in force for five years from the date of its entry into force in accordance with the first paragraph of Article 43 even for States which subsequently have ratified, accepted, approved it or acceded to it.  If there has been no denunciation, it shall be renewed tacitly every five years.

Any denunciation shall be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands at least six months before the expiry of the five year period.  It may be limited to certain of the territories or territorial units to which the Convention applies.

The denunciation shall have effect only as regards the State which has notified it.  The Convention shall remain in force for the other Contracting States.

Article 45

The Ministry of Foreign Affairs of the Kingdom of the Netherlands shall notify the States Members of the Conference, and the States which have acceded in accordance with Article 38, of the following—

1     the signatures and ratifications, acceptances and approvals referred to in Article 37;

2     the accessions referred to in Article 38;

3     the date on which the Convention enters into force in accordance with Article 43;

4     the extensions referred to in Article 39;

5     the declarations referred to in Articles 38 and 40;

6     the reservations referred to in Article 24 and Article 26, third paragraph, and the withdrawals referred to in Article 42;

7     the denunciations referred to in Article 44.

Schedule 2        Convention countries

(regulation 10)

  

Country

Date

Provision(s)

Argentina

1 June 1991

 

Austria

1 October 1988

 

Bahamas

1 September 1994

 

Belarus

1 November 1998

Article 26, third paragraph

Belgium

1 May 1999

 

Belize

1 March 1990

Article 24 and Article 26, third paragraph

Bosnia and Herzegovina

1 December 1991

 

Brazil

1 May 2001

Article 24

Bulgaria

1 October 2004

Article 26, third paragraph

Burkina Faso

1 April 1993

 

Canada:

   (a)  all Provinces and Territories not mentioned in paragraphs (b) to (f)

 

1 January 1987

 

Article 26, third paragraph

   (b)  Alberta

1 February 1987

Article 26, third paragraph

   (c)  Manitoba

1 January 1987

 

   (d)  Northwest Territories

1 April 1988

Article 26, third paragraph

   (e)  Nunavut

1 January 2001

Article 26, third paragraph

   (f)  Quebec

1 January 1987

Article 24 and Article 26, third paragraph

Chile

1 November 1994

 

China — in relation only to the following Special Administrative Regions:

 

 

   (a)  Hong Kong

1 September 1997

Article 26, third paragraph

   (b)  Macau

1 March 1999

 

Colombia

1 December 1997

 

Costa Rica

1 May 2000

 

Croatia

1 December 1991

 

Cyprus

1 November 1995

 

Czech Republic

1 March 1998

Article 26, third paragraph

Denmark

1 July 1991

Article 24 and Article 26, third paragraph

Ecuador

1 April 1993

 

El Salvador

1 January 2003

Article 26, third paragraph

Estonia

1 January 2003

Article 24 and Article 26, third paragraph

Fiji

1 May 2000

 

Finland

1 August 1994

Article 24 and Article 26, third paragraph

France — the whole of the territory of the French Republic

1 January 1987

Article 24 and Article 26, third paragraph

Georgia

1 January 1998

 

Germany

1 December 1990

Article 26, third paragraph

Greece

1 June 1993

Article 24 and Article 26, third paragraph

Guatemala

1 October 2004

Article 24 and Article 26, third paragraph

Honduras

1 September 1994

Article 26, third paragraph

Hungary

1 March 1988

 

Iceland

1 December 1997

Article 24 and
Article 26, third paragraph

Ireland

1 October 1991

 

Israel

1 December 1991

Article 26, third paragraph

Italy

1 May 1995

 

Latvia

1 January 2003

Article 24

Lithuania

1 October 2004

Article 24 and Article 26, third paragraph

Luxembourg

1 January 1987

Article 26, third paragraph

Macedonia, the Former Yugoslav Republic of

1 December 1991

 

Malta

1 May 2001

 

Mauritius

1 January 1994

Article 26, third paragraph

Mexico

1 June 1992

 

Moldova

1 November 1998

Article 26, third paragraph

Monaco

1 January 1994

Article 26, third paragraph

Netherlands

1 September 1990

Article 26, third paragraph

New Zealand

1 June 1992

Article 24 and Article 26, third paragraph

Nicaragua

1 October 2004

 

Norway

1 April 1989

Article 24 and Article 26, third paragraph

Panama

1 September 1994

Article 26, third paragraph

Paraguay

1 April 1999

 

Peru

1 January 2003

 

Poland

1 January 1994

Article 26, third paragraph

Portugal

1 January 1987

 

Romania

1 January 1994

 

Saint Kitts and Nevis

1 November 1995

Article 26, third paragraph

Serbia

1 December 1991

 

Slovakia

1 February 2001

Article 26, third paragraph

Slovenia

1 November 1994

 

South Africa

1 January 1998

Article 24 and Article 26, third paragraph

Spain

1 October 1987

 

Sri Lanka

1 January 2003

Article 24 and Article 26, third paragraph

Sweden

1 June 1989

Article 26, third paragraph

Switzerland

1 January 1987

 

Thailand

1 October 2004

Article 24

Trinidad and Tobago

1 May 2001

 

Turkey

1 August 2000

Article 26, third paragraph

Turkmenistan

1 November 1998

 

United Kingdom —
extended to include the following territories:

1 January 1987

Article 26, third paragraph

   (a)  Bailiwick of Jersey

1 March 2006

Article 26, third paragraph

   (b)  Bermuda

1 March 1999

Article 26, third paragraph

   (c)  Cayman Islands

1 August 1988

Article 26, third paragraph

   (d)  Falkland Islands

1 June 1998

Article 26, third paragraph

   (e)  Isle of Man

1 September 1991

Article 26, third paragraph

   (f)  Montserrat

1 March 1999

Article 26, third paragraph

United States of America

1 July 1988

Article 24 and Article 26, third paragraph

Uruguay

1 May 2001

 

Uzbekistan

1 May 2001

Article 26, third paragraph

Venezuela

1 January 1997

Article 24 and Article 26, third paragraph

Zimbabwe

1 April 1996

Article 26, third paragraph

 

Schedule 3        Forms

(subregulation 2 (1A))

Form 1        Request for return of child abducted from Australia

(subregulation 11 (2))

COMMONWEALTH OF AUSTRALIA

Family Law (Child Abduction Convention) Regulations 1986

REQUEST IN ACCORDANCE WITH THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION FOR THE RETURN OF A CHILD ABDUCTED FROM AUSTRALIA

REQUESTING CENTRAL AUTHORITY OR APPLICANT:

REQUESTED AUTHORITY:

Concerning the child (full name) ………………………………………,

who will turn 16 on the ………………. day of …………………. (year)      

Note   Please give the following particulars in as much detail as possible.

NOTE:  The following particulars should be completed insofar as possible.

I — IDENTITY OF THE CHILD AND ITS PARENTS

1          Child

name and first names

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

date and place of birth

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

habitual residence before

 

removal or retention

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

passport or identity card

 

No., if any

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

description and photo, if

 

possible (see annexes)

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

2        Parents

2.1     Mother: name and first names

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

                        date and place of birth

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

                        nationality

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

                        occupation

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

                        habitual residence

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

                        passport or identity card                         No., if any

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

2.2     Father:   name and first names

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

                        date and place of birth

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

                        nationality

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

                        occupation

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

                        habitual residence

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

                        passport or identity card                         No., if any

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

2.3     Date and place of marriage

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

II — REQUESTING INDIVIDUAL OR INSTITUTION (who actually exercised custody before the removal or retention)

3        Name and first names

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

          nationality of individual

 

          applicant

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

          occupation of individual

 

          applicant

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

          address

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

          passport or identity card No.,

 

          if any

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

          relation to the child

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

          name and address of legal

 

          adviser, if any

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

III — PLACE WHERE THE CHILD IS THOUGHT TO BE

4.1     Information concerning the

 

          person alleged to have removed

 

          or retained the child

 

          name and first names

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

          date and place of birth, if           known

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

          nationality, if known

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

          occupation

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

          last known address

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

          passport or identity card No., if

          any

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

          description and photo, if

          possible (see annexes)

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

4.2     Address of the child

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

4.3     Other persons who might be

          able to supply additional

          information relating to the

          whereabouts of the child

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

 

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

 

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

 

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

 

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

IV — TIME, PLACE, DATE AND CIRCUMSTANCES OF THE WRONGFUL REMOVAL OR RETENTION

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

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

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

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

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

V — FACTUAL OR LEGAL GROUNDS JUSTIFYING THE REQUEST

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

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

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

         .............................….......................................................................

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

VI — CIVIL PROCEEDINGS IN PROGRESS

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

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

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

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

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

VII — CHILD IS TO BE RETURNED TO:

a

name and first names

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

 

date and place of birth

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

 

address

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

 

telephone number

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

b

proposed arrangements for return of the child

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

 

 

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

 

 

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

VIII — OTHER REMARKS

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

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

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

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

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

IX — LIST OF DOCUMENTS ATTACHED*

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

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

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

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

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

I authorise the requested Central Authority and its agents to act on my behalf and to do all things reasonable and necessary in connection with this application.

            Date..............................................................................................

            Place.............................................................................................

            Signature and/or stamp of the requesting Central Authority or applicant

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

 

* e.g.   Certified copy of relevant decision or agreement concerning rights of custody or rights of access; certificate or affidavit as to the applicable law; information relating to the social background of the child; authorization empowering the Central Authority to act on behalf of applicant.

Form 2        Application initiating proceedings (other than for access)

(subregulations 14 (1), (2) and (3))

COMMONWEALTH OF AUSTRALIA

Family Law (Child Abduction Convention) Regulations 1986

APPLICATION INITIATING PROCEEDINGS (OTHER THAN FOR ACCESS)

(Title as under applicable Rules of Court)

DATE OF FILING:

*APPLICANT’S ADDRESS FOR SERVICE:

To:  (Full name of respondent)

TAKE NOTICE that the attached application HAS BEEN SET DOWN FOR HEARING by the Court at       

on the                                      day of                            (year)

at                             *am/*pm

AND FURTHER TAKE NOTICE THAT—

                (a)    if you wish to defend this application but to raise no new issues, you may, at the earliest practicable date before the return day set out above, file and serve an affidavit setting out briefly the matters on which you rely;

               (b)    if you wish to defend this application and to seek some order other than the order sought in this application, you may, at the earliest practicable date before the return day set out above, file and serve a cross‑application and an affidavit in support; and

                (c)    if you do not appear at the hearing, the Court may proceed to make the orders sought, or similar orders, in your absence,

Dated this                           day of                                 (year)    

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

                                                                                             Registrar.

APPLICATION

(Full name of applicant)                                                                              ,

whose occupation is                                                                                       ,

applies for the following orders:

          (a)

          (b)

          (if insufficient space attach statement of orders sought)

Details concerning child

1.       The child, (full name)                                                                            ,

was born on the                                 day of                          (year).

2.       The habitual residence of the child immediately prior to the removal or retention of the child was   , a convention country.

3.       The child has been wrongfully removed or retained from the country referred to in paragraph 2.

4.       The child is now residing with (full name)                                             ,

          (relationship, if any, to child)                                                             ,

          at                                                                         .

Details concerning child’s custodian

5.       The applicant under the Convention, (full name)                                   ,

          (relationship, if any, to child)                             , of                           

          (address)                                                                      , has rights of custody in respect of the child by reason of the following factual and legal circumstances:

(include details of any custody order)

Details concerning child’s removal or retention

6.       The child was removed or retained on the                                       day

of                              (year), in the following circumstances:

Pending proceedings in Australia

*7.    The following are particulars of pending family law or child welfare proceedings concerning the child:

         (set out brief particulars of any pending proceedings and the court in which the proceedings are pending)

                                                    or

*7.     There are no pending family law or child welfare proceedings concerning the child.

Attachments

8.       The request for return of the child under the Convention is attached.

9.       The following documents are also attached:

         *(a)     certified copy of relevant decision or agreement concerning rights of custody or rights of access;

        *(b)     certificate or affidavit as to the applicable law;

         *(c)     information relating to the social background of the child;

         *(e)     authorization empowering the Central Authority to act on behalf of the applicant;

         *(f)     other (specify).

Dated this                           day of                                 (year)

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

(Signature of applicant)

* Cross out whichever is not applicable.

AFFIDAVIT

I, (full name, address and occupation)

make oath and say/affirm:

                 1.    I am the applicant in, and I have read, this application.

                 2.    The facts stated in this application that are within my personal knowledge are true. All other facts stated in this application are true to the best of my knowledge, information and belief.

SWORN (or AFFIRMED) by the

applicant at

on the                                        day of                                 (year)

                                                                                                                     

                                                                         (Signature of applicant)

Before me:

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

(Signature and title of person

before whom affidavit is sworn)

Form 2A     Answer/*and cross application

(subregulation 14 (4))

COMMONWEALTH OF AUSTRALIA

Family Law (Child Abduction Convention) Regulations 1986

ANSWER/*AND CROSS APPLICATION

(Title as under applicable Rules of Court)

In answer to the application filed on the                 day of                 (year), and served on the    day of   (year), the respondent states that:

(set out matters to be pleaded)

1...................................................................................................................

2...................................................................................................................

AFFIDAVIT

I, (full name, address and occupation)

make oath and say/affirm:

                   1.         I am the respondent in, and I have read, this answer.

                   2.         The facts stated in this answer that are within my personal knowledge are true.  All other facts stated in this answer are true to the best of my personal knowledge, information and belief.

SWORN (or AFFIRMED) by the

respondent at

on the                                        day of                                 (year)

                                                                                                                     

                                                                     (Signature of respondent)

Before me:

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

(Signature and title of person before

whom affidavit sworn or affirmed)

*CROSS APPLICATION

(Title as under applicable Rules of Court)

(Full name of respondent)

whose occupation is

applies for the following orders:

          (a)

          (b)

                   (if insufficient space attach statement of orders sought)

Details concerning child

1.       The child, (full name)                        , was born on the

          day of                                               (year).

2.       The child is now residing with (full name)

          (relationship, if any, to child)

          at

Details concerning respondent’s rights to custody/access

3.       The respondent, (full name)                                                                 ,

          (relationship, if any, to child)                                                        , of

          (address)                                                                                             ,

has rights of *custody/*access in respect of the child by reason of the following factual and legal circumstances:

                            (include details of any custody/access order)

Pending proceedings in Australia

4.         The following are particulars of pending family law or child welfare proceedings concerning the child:

            (set out brief particulars of any pending proceedings and the court in which the proceedings are pending)

Attachments

5.       The following documents are also attached:

              *(a)    certified copy of relevant decisions or agreement

                        concerning rights of custody or rights of access;

             *(b)    information relating to the social background of the

                        child;

              *(c)    other (specify).

Dated this                           day of                                 (year)

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

                                                                       (Signature of respondent)

* Cross out if not applicable.

AFFIDAVIT

I, (full name, address and occupation)

make oath and say/affirm:

                 1.    I am the respondent in, and I have read, this cross application.

                 2.    The facts stated in this cross application that are within my personal knowledge are true.  All other facts stated in this cross application are true to the best of my personal knowledge, information and belief.

SWORN (or AFFIRMED) by the

respondent at

on the                                        day of                                 (year)

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

                                                                            (Signature of respondent)

Before me:

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

  (Signature and title of person

  before whom affidavit sworn or affirmed)

Form 2B     Reply

(subregulation 14 (4))

COMMONWEALTH OF AUSTRALIA

Family Law (Child Abduction Convention) Regulations 1986

REPLY TO ANSWER/*AND CROSS APPLICATION

(Title as under applicable Rules of Court)

In reply to the answer/*and cross application filed on the                       day of               (year) and served on the                       day of               (year), the applicant states:

(set out matters in reply to answer/cross application)

1.       ........................................................................................................

2.       ........................................................................................................

*  Cross out if not applicable.

AFFIDAVIT

I, (full name, address and occupation)

make oath and say/affirm:

                 1.    I am the applicant in, and I have read, this reply.

                 2.    The facts stated in this reply that are within my personal knowledge are true.  All other facts stated in this reply are true to the best of my knowledge, information and belief.

SWORN (or AFFIRMED) by the

applicant at

on the                                        day of                                 (year)

                                                                                                                     

                                                                              (Signature of applicant)

Before me:

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

(Signature and title of person

before whom affidavit sworn)

Form 2C     Warrant for the apprehension or detention of a child

(regulation 31)

COMMONWEALTH OF AUSTRALIA

Family Law (Child Abduction Convention) Regulations 1986

WARRANT FOR THE APPREHENSION OR DETENTION OF A CHILD

File No:

Applicant:

At:

Respondent:

TO:          *The Marshal

                *All Agents of the Australian Federal Police

                *All Officers of the Police Forces of the States and Territories of Australia

                In compliance with the order of the Court dated [date] under *regulation 15/*regulation 25A of the Family Law (Child Abduction Convention) Regulations 1986, and on the application of [name of applicant], THIS WARRANT DIRECTS THAT:

1.             You are authorised, with such assistance as is necessary and reasonable, and, if necessary and reasonable, by force, to find and recover the child [name of child] born on [date of child’s birth].

2.             You are required to deliver the child to [name and address of person or agency to whom the child is to be delivered].

3.             If the circumstances of the child’s removal or retention are so serious or urgent as to justify search and entry of a vehicle, vessel, aircraft or premises, you are authorised, with such assistance as is necessary and reasonable, and, if necessary and reasonable, by force, to stop, enter and search any vehicle, vessel or aircraft, and to enter and search any premises, that you reasonably believe the child is in or on.

*4.           This warrant remains in force until [date].

DATED:

By the Court

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

Registrar

*Omit if not applicable

Form 2D     Application to discharge return order

(subregulation 19A (1))

COMMONWEALTH OF AUSTRALIA

Family Law (Child Abduction Convention) Regulations 1986

APPLICATION TO DISCHARGE RETURN ORDER

(Title as under applicable Rules of Court)

Details concerning child

1.       The child, (full name)                                                                            ,

was born on the                                 day of                          (year)       .

2.       The habitual residence of the child immediately before the removal or retention of the child was     , a convention country.

3.       The child is now residing with (full name)                             ,

          (relationship, if any, to child)                                                             ,

          at                                                                         .

Details concerning child’s custodian

4.       The applicant under the Convention, (full name)                                   ,

          (relationship, if any, to child)                             , of                           

          (address)                                                                      , has rights of custody in respect of the child by reason of the following factual and legal circumstances:

(include details of any custody order)

Details concerning child’s removal or retention

5.       The child was removed or retained on the                                       day

of                                   (year), in the following circumstances:

Judicial proceedings in Australia

*6.    The following are particulars of any family law or child welfare proceedings concerning the child:

         (set out brief particulars of any proceedings and the court in which the proceedings)

                                                    or

*6.     There are no pending family law or child welfare proceedings concerning the child.

Attachments

7.      The request for the discharge of the return of the child under the Convention is attached.

8.       The following documents are also attached:

         *(a)    certified copy of relevant decision or agreement concerning rights of custody or rights of access;

        *(b)    certificate or affidavit as to the applicable law;

         *(c)    information relating to the social background of the child;

        *(d)    authorisation empowering the Central Authority to act on behalf of the applicant;

         *(e)    other (specify).

                               Dated this                  day of                                 (year)

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

(Signature of applicant)

AFFIDAVIT

I, (full name, address and occupation)

make oath and say/affirm:

          1.       I am the applicant in, and I have read, this application.

          2.       The facts stated in this application that are within my personal knowledge are true. All other facts stated in this application are true to the best of my knowledge, information and belief.

SWORN (or AFFIRMED) by

the applicant at

on the                                                    day of                               (year)

                                                                                                                     

                                                                              (Signature of applicant)

Before me:

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

(Signature and title of person
before whom affidavit sworn
)

* Omit if not applicable

Form 3        Request for access to a child in a convention country

(subregulation 23 (2))

COMMONWEALTH OF AUSTRALIA

Family Law (Child Abduction Convention) Regulations 1986

REQUEST IN RELATION TO RIGHTS OF ACCESS IN ACCORDANCE WITH THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION

REQUESTING CENTRAL AUTHORITY OR APPLICANT:

REQUESTED AUTHORITY:

Concerning the child (full name)                                                                    ,

who will turn 16 on the day of                                                                (year)

Note   Please give the following particulars in as much detail as possible.

I — IDENTITY OF THE CHILD AND ITS PARENTS

1

Child

 

 

name and first names

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

 

date and place of birth

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

 

habitual residence

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

 

passport or identity card No., if any

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

 

description and photo, if possible (see annexes)

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

2

Parents

 

2.1

Mother:  name and first names

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

 

               date and place of birth

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

 

               nationality

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

 

               occupation

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

 

               habitual residence

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

 

               passport or identity card No., if any

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

2.2

Father:   name and first names

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

 

               date and place of birth

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

 

               nationality

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

 

               occupation

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

 

               habitual residence

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

 

               passport or identity card No., if any

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

2.3

Date and place of marriage

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

II — REQUESTING INDIVIDUAL OR INSTITUTION

3

Name and first names

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

 

nationality of individual applicant

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

 

occupation of individual applicant

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

 

address

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

 

passport or identity card No., if any

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

 

relation to the child

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

 

name and address of legal adviser, if any

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

III — PLACE WHERE THE CHILD IS THOUGHT TO BE

4.1

Information concerning the person alleged to have prevented the exercise of rights of access or denied the enjoyment of access

 

name and first names

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

 

date and place of birth, if known

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

 

nationality, if known

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

 

occupation

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

 

last known address

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

 

passport or identity card No., if any

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

 

description and photo, if

possible (see annexes)

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

4.2

Address of the child.

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

 

 

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

 

 

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

4.3

Other persons who might be able to supply additional information relating to the whereabouts of the child

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

 

 

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

 

 

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

 

 

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

 

 

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

IV — CIRCUMSTANCES RELATING TO THE PREVENTION OF EXERCISE OF RIGHTS OF ACCESS

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

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

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

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

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

V — FACTUAL OR LEGAL GROUNDS JUSTIFYING THE REQUEST

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

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

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

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

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

VI — CIVIL PROCEEDINGS IN PROGRESS

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

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

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

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

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

VII — PROPOSED ARRANGEMENTS TO SECURE EXERCISE OF RIGHTS OF ACCESS

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

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

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

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

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

VIII — OTHER REMARKS

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

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

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

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

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

IX — LIST OF DOCUMENTS ATTACHED*

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

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

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

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

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

I authorise the requested Central Authority and its agents to act on my behalf and to do all things reasonable and necessary in connection with this application.

                   Date........................................................................................

                   Place.......................................................................................

                   Signature and/or stamp of the requesting Central Authority or applicant

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

* e.g.  Certified copy of relevant decision or agreement concerning  rights of custody or rights of access; certificate or affidavit as to the applicable law; information relating to the social background of the child; authorization empowering the Central Authority to act on behalf of applicant.

Form 4        Application initiating proceedings for access

(subregulation 25 (1))

COMMONWEALTH OF AUSTRALIA

Family Law (Child Abduction Convention) Regulations 1986

APPLICATION INITIATING PROCEEDINGS FOR ACCESS

(Title of proceedings as under applicable Rules of Court)

DATE OF FILING:

RESPONSIBLE CENTRAL AUTHORITY’S ADDRESS FOR SERVICE:

To:  (Full name of respondent)

TAKE NOTICE that the attached application HAS BEEN SET DOWN FOR HEARING by the Court at        on the  

day of                                                  (year), at          *am/*pm

AND FURTHER TAKE NOTICE THAT—

(a)                    if you wish to defend this application but to raise no new issues, you may, at the earliest practicable date before the return day set out above, file and serve an affidavit setting out briefly the matters on which you rely;

(b)                   if you wish to defend this application and to seek some order other than the order sought in this application, you may, at the earliest practicable date before the return day set out above, file and serve a cross‑application and an affidavit in support; and

(c)                    if you do not appear at the hearing, the Court may proceed to make the orders sought, or similar orders, in your absence.

Dated this                           day of                                 (year)

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

                                                                                     Registrar

APPLICATION

(Full name of applicant)                                                                              ,

whose occupation is                                                                                       ,

and who represents the responsible Central Authority, applies for the following orders:—

                (a)

               (b)

(if insufficient space attach statement of orders sought).

Details concerning child

1.       The child, (full name)                                                         , was born

on the                                        day of                              (year).

2.       The habitual residence of the child immediately prior to any breach of rights of access was            , a convention country.

3.       The child is now residing with (full name)                                           ,

          (relationship, if any, to child)                                                           ,

          at                                                                                                       .

Details concerning rights of  custody of child

4.       (Full name)                                                                   , (relationship,

          if any, to child)                                                                               , of

          (address)                                                                         has rights of custody in respect of the child by reason of the following factual and legal                                                 circumstances:

(include details of any custody order)

Details concerning rights of access/time spent or communication with the child

*5.     The applicant under the Convention on the Civil Aspects of International Child Abduction,

          (full name)                                          , (relationship, if any, to child), of (address)      , has rights of access in respect of the child by reason of the following factual and legal circumstances:

          (include details of any access order)

or

*5.       The applicant under the Convention (full name)   ,

            (relationship, if any, to child)          ,

            of

            (address)          , has no existing rights of access in respect
            of the child but wishes to establish or secure a parenting order   under Australian law specifying with whom a child is to spend           time or communicate..

6.       The following are the circumstances in which rights of access have been breached or enjoyment of access denied:

Pending proceedings in Australia

*7.     The following are particulars of pending family law or child welfare proceedings concerning the child:

          (set out brief particulars of any pending proceedings  and  the  court  in which the proceedings are pending)

or

*7.     There are no pending family law or child welfare proceedings concerning the child.

Attachments

8.       The request in relation to rights of access to the child under the Convention is attached.

9.       The following documents are also attached:

          *(a)                    certified copy of relevant decision or agreement concerning rights of custody or rights of access;

          *(b)                    certificate or affidavit as to the applicable law;

          *(c)                    information relating to the social background of the child;

          *(d)                    authorization empowering the responsible Central Authority to act on behalf of the applicant;

          *(e)        other (specify).

Dated this                                              day of                                 (year)

(Signature of applicant)

* Cross out whichever is not applicable.

AFFIDAVIT

I, (full name, address and occupation)

make oath and say/affirm:

                 1.    I am the applicant in, and I have read, this application.

                 2.    The facts stated in this application that are within my personal knowledge are true.  All other facts stated in this application are true to the best of my knowledge, information and belief.

SWORN (or AFFIRMED) by

the applicant at

on the                                 day of                                                  (year)

                                                                                                            

                                                                            (Signature of applicant)

Before me:

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

     (Signature and title of person

     before whom affidavit sworn)

Form 4A     Answer/*and cross application (access)

(subregulation 25 (2))

COMMONWEALTH OF AUSTRALIA

Family Law (Child Abduction Convention) Regulations 1986

ANSWER/*AND CROSS APPLICATION (ACCESS)

(Title of proceedings as under applicable Rules of Court)

In answer to the application filed on the                       day of             (year)

and served on the                         day of                   (year), the respondent states that:

(set out matters to be pleaded)

1.       ........................................................................................................

2.       ........................................................................................................

AFFIDAVIT

I, (full name, address and occupation)

make oath and say/affirm:

                 1.    I am the respondent in, and I have read, this answer.

                 2.    The facts stated in this answer that are within my personal knowledge are true.  All other facts stated in this answer are true to the best of my personal knowledge, information and belief.

SWORN (or AFFIRMED) by the applicant at

on the                                           day of                         (year)

Before me:                                             .....................................................

                                                                       (Signature of applicant)

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

     (Signature and title of person before

     whom affidavit sworn or affirmed)

*CROSS APPLICATION

(Title of proceedings as under applicable Rules of Court)

(Full name of respondent)

whose occupation is

applies for the following orders:

          (a)

          (b)

          (if insufficient space, attach statement of orders sought).

Details concerning child

1.       The child, (full name)                                               , was born on

          the                             day of                                                          (year).

2.       The child is now residing with (full name)

(relationship, if any, to child)

at

Details concerning rights of access/custody

*3.     The respondent, (Full name)                                       ,   (relationship,

          if any, to child)                                                                             , of

          (address)                                                                           has rights of
*access/*custody in  respect of the child by reason of the following factual and legal circumstances:

          (include details of any access/custody order)

or

Pending proceedings in Australia

4.      The following are particulars of pending family law or child welfare proceedings concerning the child:

         (set out brief particulars of any pending proceedings and the court in which the proceedings are pending)

Attachments

5.       The following documents are attached:

*(a)                  certified copy of relevant decision or agreement concerning rights of custody or rights of access;

*(b)                 information relating to the social background of the child;

*(c)                  other (specify).

Dated this                                     day of                             (year)

(Signature of respondent)

*  Cross out if not applicable.

AFFIDAVIT

I, (Full name, address and occupation)

make oath and say/affirm:

                 1.    I am the respondent in, and I have read, this cross application.

                 2.    The facts stated in this cross application that are within my personal knowledge are true. All other facts stated in this cross application are true to the best of my knowledge, information and belief.

SWORN (or AFFIRMED) by the

respondent at

on the                                           day of                                           (year)

Before me:                                                                                                     

                                                                         (Signature of respondent)

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

     (Signature and title of person before

     whom affidavit sworn or affirmed)

Form 4B     Reply (access)

(subregulation 25 (2))

COMMONWEALTH OF AUSTRALIA

Family Law (Child Abduction Convention) Regulations 1986

REPLY TO ANSWER/*AND CROSS APPLICATION (ACCESS)

(Title of proceedings as under applicable Rules of Court)

In reply to the answer/*and cross application filed on

the                        day of                         (year) and served on

the                        day of                         (year), the applicant states:

(set out matters in reply)

1.   ...........................................................................................................

2.   ...........................................................................................................

*  Cross out if not applicable.

AFFIDAVIT

I, (full name, address and occupation)

make oath and say/affirm:

                 1.    I am the applicant in, and I have read, this reply.

                 2.    The facts stated in this reply that are within my personal knowledge are true.  All other facts stated in this reply are true to the best of my knowledge, information and belief.

SWORN (or AFFIRMED) by the

applicant at

on the                                        day of                                   (year)

Before me:                                                                                                     

                                                                            (Signature of applicant)

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

(Signature and title of person before

whom affidavit sworn or affirmed)

 


Notes to the Family Law (Child Abduction Convention) Regulations 1986

Note 1

The Family Law (Child Abduction Convention) Regulations 1986 (in force under the Family Law Act 1975) as shown in this compilation comprise Statutory Rules 1986 No. 85 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

1986 No. 85

1 May 1986

1 May 1986

 

1989 No. 206

7 Aug 1989

7 Aug 1989

1990 No. 37

27 Feb 1990

27 Feb 1990

1992 No. 34

7 Feb 1992

7 Feb 1992

1992 No. 159

12 June 1992

12 June 1992

1993 No. 263

7 Oct 1993

7 Oct 1993

1993 No. 358

23 Dec 1993

23 Dec 1993

1994 No. 252

13 July 1994

13 July 1994

R. 3

1994 No. 275

2 Aug 1994

2 Aug 1994

1994 No. 344

18 Oct 1994

18 Oct 1994

1995 No. 296

26 Oct 1995

26 Oct 1995

1995 No. 334

6 Nov 1995

6 Nov 1995

1996 No. 74

5 June 1996

11 June 1996

1997 No. 98

7 May 1997

7 May 1997

1997 No. 292

8 Oct 1997

8 Oct 1997

1997 No. 315

17 Nov 1997

17 Nov 1997

1997 No. 347

15 Dec 1997

15 Dec 1997

1998 No. 59

9 Apr 1998

9 Apr 1998

1998 No. 340

22 Dec 1998

22 Dec 1998

1998 No. 341

22 Dec 1998

22 Dec 1998

1999 No. 222

29 Sept 1999

29 Sept 1999

2000 No. 208

31 July 2000

31 July 2000

2000 No. 275

18 Oct 2000

18 Oct 2000

2002 No. 110

5 June 2002

5 June 2002

2003 No. 340

23 Dec 2003

23 Dec 2003

2004 No. 371

23 Dec 2004

23 Dec 2004

2006 No. 139

26 June 2006 (see F2006L01899)

1 July 2006

2007 No. 213

23 July 2007 (see
F2007L02252)

24 July 2007

Table of Amendments

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

 

Provision affected

How affected

Part 1

 

Heading to Part 1.................

ad. 1995 No. 296

R. 1.........................................

rs. 1998 No. 340

R. 1A.......................................

ad. 2004 No. 371

 

am. 2007 No. 213

R. 2.........................................

am. 1992 No. 34; 1995 No. 296; 2000 No. 208; 2004 No. 371; 2007 No. 213

Note to r. 2 (1).......................

ad. 2000 No. 208

 

rs. 2007 No. 213

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

rs. 1995 No. 296

 

rep. 2004 No. 371

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

rs. 1995 No. 296

 

am. 2007 No. 213

R. 5.........................................

am. 1995 No. 296; 2007 No. 213

Heading to r. 6......................

rs. 2007 No. 213

R. 6.........................................

rs. 1995 No. 296

 

am. 2004 No. 371; 2007 No. 213

R. 7.........................................

rs. 2007 No. 213

R. 8.........................................

am. 2007 No. 213

R. 10.......................................

am. 1989 No. 206

 

rs. 2003 No. 340

Part 2

 

Heading to Part 2.................

ad. 1995 No. 296

 

rs. 2004 No. 371; 2007 No. 213

Part 2......................................

rs. 2007 No. 213

R. 11.......................................

am. 1992 No. 34; 1995 No. 296

 

rs. 2004 No. 371; 2007 No. 213

R. 12.......................................

rep. 1995 No. 296

R. 13.......................................

rs. 1995 No. 296; 2004 No. 371; 2007 No. 213

Part 3

 

Heading to Part 3

ad. 1995 No. 296

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

rs. 1995 No. 296

 

am. 1998 No. 341

 

rs. 2004 No. 371; 2007 No. 213

R. 14A....................................

ad. 2007 No. 213

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

am. 1992 No. 34

 

rs. 1995 No. 296

 

am. 2004 No. 371; 2007 No. 213

Heading to r. 16...................

rs. 2004 No. 371; 2007 No. 213

R. 16.......................................

rs. 1995 No. 296

 

am. 2004 No. 371; 2007 No. 213

Heading to r. 17...................

rs. 2004 No. 371

R. 17.......................................

rs. 1995 No. 296

 

am. 2004 No. 371; 2007 No. 213

R. 18.......................................

rs. 1995 No. 296

 

am. 1996 No. 74; 2004 No. 371; 2007 No. 213

R. 19.......................................

rs. 1995 No. 296

 

am. 1996 No. 74; 2007 No. 213

R. 19A....................................

ad. 2004 No. 371

 

rs. 2007 No. 213

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

am. 1995 No. 296; 2000 No. 208

 

rs. 2004 No. 371

 

am. 2007 No. 213

R. 21.......................................

am. 1995 No. 296

 

rs. 2007 No. 213

Rr. 22, 23...............................

rep. 1995 No. 296

Part 4

 

Heading to Part 4.................

ad. 1995 No. 296

 

rs. 2004 No. 371; 2007 No. 213

Part 4......................................

rs. 2007 No. 213

R. 23.......................................

ad. 2004 No. 371

 

rs. 2007 No. 213

Note to r. 23..........................

rs. 2006 No. 139

 

rep. 2007 No. 213

R. 24.......................................

am. 1992 No. 34; 1995 No. 296

 

rs. 2004 No. 371; 2007 No. 213

R. 25.......................................

rs. 1995 No. 296

 

am. 1998 No. 341

 

rs. 2004 No. 371

 

am. 2006 No. 139

 

rs. 2007 No. 213

R. 25A....................................

ad. 2007 No. 213

Part 5

 

Part 5......................................

ad. 1995 No. 296

Heading to r. 26...................

rs. 2006 No. 139

R. 26.......................................

ad. 1995 No. 296

 

am. 1996 No. 74; 2006 No. 139; 2007 No. 213

R. 27.......................................

ad. 1995 No. 296

 

am. 2000 No. 208; 2004 No. 371; 2007 No. 213

R. 28.......................................

ad. 1995 No. 296

 

am. 2004 No. 371; 2007 No. 213

R. 29.......................................

ad. 1995 No. 296

 

am. 1996 No. 74

 

rs. 2004 No. 371

R. 30.......................................

ad. 1995 No. 296

 

rs. 2004 No. 371

 

am. 2006 No. 139

 

rs. 2007 No. 213

R. 31.......................................

ad. 2007 No. 213

Schedule 1

 

Schedule 1............................

am. 2004 No. 371

Schedule 2

 

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

rs. 1989 No. 206; 1990 No. 37

 

am. 1992 Nos. 34 and 159; 1993 Nos. 263 and 358; 1994 Nos. 252, 275 and 344; 1995 No. 334; 1997 Nos. 98, 292, 315 and 347; 1998 Nos. 59, 340; 1999 No. 222; 2000 No. 275; 2002 No. 110

 

rs. 2003 No. 340

 

am. 2007 No. 213

Schedule 3

 

Heading to Schedule 3.......

rs. 2004 No. 371

Heading to Form 1...........

rs. 2004 No. 371

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

1986 No. 85

 

am. 1995 No. 296; 1996 No. 74; 2000 No. 208; 2004 No. 371; 2007 No. 213

Heading to Form 2...........

am. 1998 No. 341

 

rs. 2007 No. 213

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

1986 No. 85

 

am. 1995 No. 296; 1996 No. 74; 2000 No. 208; 2004 No. 371; 2007 No. 213

Heading to Form 2A........

am. 1998 No. 341

 

rs. 2007 No. 213

Form 2A.............................

ad. 1992 No. 34

 

am. 1996 No. 74; 2000 No. 208; 2004 No. 371; 2007
No. 213

Heading to Form 2B........

am. 1998 No. 341

 

rs. 2004 No. 371; 2007 No. 213

Form 2B.............................

ad. 1992 No. 34

 

am. 2000 No. 208; 2004 No. 371; 2007 No. 213

Heading to Form 2C........

rs. 2004 No. 371; 2007 No. 213

Form 2C.............................

ad. 1998 No. 341

 

am. 2004 No. 371; 2007 No. 213

Form 2D.............................

ad. 2004 No. 371

Heading to Form 3...........

rs. 2004 No. 371; 2007 No. 213

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

1986 No. 85

 

am. 1995 No. 296; 1996 No. 74; 2004 No. 371; 2007
No. 213

Heading to Form 4...........

am. 1998 No. 341

 

rs. 2007 No. 213

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

1986 No. 85

 

am. 1996 No. 74; 2000 No. 208; 2004 No. 371; 2006
No. 139; 2007 No. 213

Heading to Form 4A........

am. 1998 No. 341

 

rs. 2004 No. 371; 2007 No. 213

Form 4A.............................

ad. 1992 No. 34

 

am. 1996 No. 74; 2000 No. 208; 2004 No. 371; 2007
No. 213

Heading to Form 4B........

am. 1998 No. 341

 

rs. 2004 No. 371; 2007 No. 213

Form 4B.............................

ad. 1992 No. 34

 

am. 2000 No. 208; 2004 No. 371; 2007 No. 213