Federal Register of Legislation - Australian Government

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SLI 2007 No. 213 Regulations as made
These Regulations amend the Family Law (Child Abduction Convention) Regulations 1986 to improve the operation and effectiveness in Australia of the Convention, based on the Attorney General’s Department’s experience administering the Convention in Australia.
Administered by: Attorney-General's
General Comments: The disallowance notice was not resolved and lapsed when the Parliament was prorogued on 15 October 2007. Under subsection 42(3) of the Legislative Instruments Act 2003, the instrument is deemed to be tabled in the Senate on the first sitting day of the 42nd Parliament.
Exempt from sunsetting by the Legislative Instruments Act 2003 s 54(2) item 43
Registered 23 Jul 2007
Tabling HistoryDate
Tabled HR07-Aug-2007
Tabled Senate07-Aug-2007
Date of repeal 09 Apr 2013
Repealed by Attorney-General's (Spent and Redundant Instruments) Repeal Regulation 2013
This Legislative Instrument has been subject to a Motion to Disallow:
Motion Date:
20-Sep-2007
Expiry Date:
17-Jun-2008
House:
Senate
Details:
Full
Resolution:
Parliament Prorogued
Resolution Date:
20-Sep-2007
Resolution Time:
Provisions:

EXPLANATORY STATEMENT

 

Select Legislative Instrument 2007 No. 213

 

Issued by the authority of the Attorney-General

 

Family Law Act 1975

 

Family Law (Child Abduction Convention) Amendment Regulations 2007
(No. 1)

 

Subsection 125(1) of the Family Law Act 1975 (the Act) provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters that are required or permitted by the Act to be prescribed, or are necessary or convenient to be prescribed, for carrying out or giving effect to the Act.

 

Section 111B of the Act provides that the regulations may make such provision as is necessary or convenient to enable Australia to perform its obligations, or obtain any advantage or benefit, under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the Convention), which entered into force for Australia on 1 January 1987. 

 

The purpose of the Convention is to discourage parental child abduction.  The objects of the Convention are to secure the prompt return of children wrongfully removed to or retained in any Convention country, and to ensure that rights of custody and access to children under the laws of a country which is a party to the Convention (a convention country) are effectively respected in the other convention countries. 

 

Regulation 1A of the Family Law (Child Abduction Convention) Regulations 1986 (the Principal Regulations) provides that the purpose of the Regulations is to give effect to section 111B of the Act, and that the Regulations are to be construed having regard to the principles and objects of the Convention. 

 

The purpose of the Amendment Regulations (the Regulations) is to amend the Principal Regulations to improve the operation and effectiveness in Australia of the Convention through its implementing legislation, based on the Attorney General’s Department’s experience in administering the Convention in Australia.  Two of the most significant amendments clarify certain matters that were placed in doubt as a result of recent judicial pronouncements.  Most of the amendments however are of a minor nature, to correct technical errors or clarify semantic infelicities. 

 

Specifically, the Regulations:

 

  • allow an Australian Central Authority designated to discharge the duties imposed by the Convention (Central Authority) to refuse to accept a request for the return of a child abducted from Australia if the request is not in accordance with the Convention; 
  • clarify the types of orders that may be sought from a court by a Central Authority or an individual applicant under the Convention (an Article 3 applicant) where a child has been abducted from a convention country to Australia, including an order seeking the delivery of the passport of the child, and of any other relevant person, to an appropriate authority; 
  • enable the court greater discretion to discharge an order made by an Australian court requiring a child to be returned under the Convention, including the lowering of the time-frame from two years to one year in which an application for a discharge of a return order can be made, as the current two year period has proved ineffective in practice; 
  • clarify that the role of a Central Authority in regards to the making of arrangements for the return of a child under the Convention is limited to coordinating the making of arrangements and does not extend to paying for such arrangements, following a recent court decision which suggested that the Central Authority could be held liable to pay for such arrangements;
  • rearrange the provisions relating to applications to spend time with a child (access) for greater clarity and readability and to follow the usual chronological course of an access application;
  • clarify and define the types of costs that may be sought by the Central Authority or an Article 3 applicant, as the orders that may be sought are different for each entity; and
  • correct technical errors and clarify semantic infelicities.

 

The Regulations also add Bulgaria, Guatemala, Lithuania, Nicaragua and Thailand to the list of convention countries in Schedule 2 in respect of which the Convention has entered into force for Australia.  Included in Schedule 2 is the date the Convention came into force for each of these countries and any reservations made by a country when becoming a party to the Convention. 

 

For the purposes of the Act and the Regulations, Australia’s relations with each country listed in Schedule 2 has been effective since the date on which the Convention entered into force for each of those countries, by virtue of regulation 10 of the Principal Regulations. 

 

Details of the Regulations are set out in the Attachment.

 

The Act specifies no conditions that need to be met before the power to make the Regulations may be exercised.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments. 

 

State and Territory Central Authorities which are responsible for administering the Regulations in their respective jurisdictions have been consulted.  Judicial officers of the Family Court of Australia have also been consulted. 

 

State and Territory Central Authorities are informed of Notifications so that any concerns can be considered in deciding whether to initiate the objection process.  No objection was made by Australia to the accession of Bulgaria, Guatemala, Lithuania, Nicaragua and Thailand. 


 

ATTACHMENT

 

Details of the Family Law (Child Abduction Convention) Amendment Regulations 2007 (No. 1)

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Family Law (Child Abduction Convention) Amendment Regulations 2007 (No. 1).

 

Regulation 2 – Commencement

 

This regulation provides for the Regulations to commence on the day after they are registered on the Federal Register of Legislative Instruments. 

 

Regulation 3 – Amendment of Family Law (Child Abduction Convention) Regulations 1986

 

This regulation provides that the Family Law (Child Abduction Convention) Regulations 1986 (the Principal Regulations) are amended as set out in Schedule 1.

 

Schedule 1 – Amendments

 

Item [1]:  Paragraph 1A(2)(b)

 

Item 1 amends paragraph 1A(2)(b) of the Principal Regulations to remove the phrase ‘between parents’.  The revision is in recognition of the fact that the Convention is deliberately framed to avoid attributing the act of abduction exclusively to one of the parents, in recognition that the removal or retention of a child could be by persons other than a parent, such as a grandparent. 

 

Item [2]:  Subregulation 2(1), definition of Article 3 applicant

 

Item 2 amends the definition of an Article 3 applicant consequential to amendments to subregulations 14(1) and 14(2) of the Principal Regulations.  A person, institution or other body, other than a responsible Central Authority, who has made an application under paragraph 14(1) or 14(2) is an Article 3 applicant and is referred to as such throughout the Principal Regulations thereafter. 

 

Item [3]:  Subregulation 2(1), definition of Commonwealth Central Authority

 

Item 3 amends the definition of Commonwealth Central Authority of the Principal Regulations, which does not state which Department is being referred to.  The amendment makes clear that it is the Secretary of the Attorney-General’s Department who holds the office of the Commonwealth Central Authority. 

 

Item [4]:  Subregulation 2(1), definition of Convention

 

Item 4 removes the long title ‘Convention on the Civil Aspects of International Child Abduction’ from subregulation 2(1) of the Principal Regulations.  Its inclusion for definition in subregulation 2(1) alongside the word ‘Convention’ is superfluous, since the long title does not occur elsewhere in the Principal Regulations. 

 

Item [5]:  Subregulation 2(1), definition of filed

 

Item 5 removes the reference to the Family Law Regulations from the definition of ‘filed’ in subregulation 2(1) of the Principal Regulations, where ‘filed’ is defined as having the same meaning it has in the Family Law Regulations.  Instead, the reference to the Family Law Regulations has been replaced with a reference to the applicable Rules of Court.  This amendment avoids circularity, because ‘filed’ in the Family Law Regulations is defined as having the same meaning it has in the applicable Rules of Court. 

 

Item [6]:  Subregulation 2(1), after definition of responsible Central Authority

 

Item 6 adds a definition of return order to the Principal Regulations.  The amendment assists in a clearer, more simplified, construction of those provisions in the Regulations that refer to an order for the return of a child under the Convention. 

 

Item [7]:  Subregulation 2(1), definition of Secretary

 

Item 7 removes the definition of Secretary from subregulation 2(1) of the Principal Regulations.  Its inclusion for definition in subregulation 2(1) is superfluous, as the word does not occur elsewhere in the Principal Regulations, except in the definition of Commonwealth Central Authority in subregulation 2(1), which is amended by item 3 to make clear that the Commonwealth Central Authority means the Secretary of the Attorney-General’s Department. 

 

Item [8]:  Subregulation 2(1), note

 

Item 8 amends the note in subregulation 2(1) which lists three expressions used in the Principal Regulations that are defined in subsection 4(1) of the Act, namely, applicable Rules of Court, related Federal Magistrates Rules, and standard Rules of Court.  However, only the expression ‘applicable Rules of Court’ occurs elsewhere in the Principal Regulations.  Further, the definition of ‘applicable Rules of Court’ in subsection 4(1) of the Act means either the related Federal Magistrates Rules or the standard Rules of Court.  The inclusion of these latter two expressions in the note in subregulation 2(1) is therefore superfluous. 

 

Item [9]:  Subregulation 4(1)

 

Item 9 substitutes a new subregulation 4(1).  The repealed subregulation does not refer to rights of custody attributable to a person, institution or other body, under a law in Australia.  The item amends the meaning of rights of custody by inserting the phrase ‘in Australia or’ before ‘in the convention country’ in paragraph 4(1)(b) of the Principal Regulations.  This amendment is necessary because the definition of rights of custody in relation to a child who, in paragraph 4(1)(a), was habitually resident in Australia before his or her removal or retention, is missing the second element in paragraph 4(1)(b), which is required to complete the definition of “rights of custody”.  The definition was incomplete because ‘convention country’ in paragraph 4(1)(b), as defined in subregulation 2(1), does not include Australia in its meaning. 

 

Item [10]:  Regulation 6, heading

 

Item 10 amends a technicality in the heading of regulation 6 of the Principal Regulations.  The word ‘regulations’ is replaced by ‘Regulations’ with an initial upper-case letter to indicate that the word refers to the Principal Regulations generally and not to any specific regulation or regulations. 

 

Item [11]:  Subregulation 6(2)

 

Item 11 amends subregulation 6(2) of the Principal Regulations to remove the words ‘to the country in which he or she habitually resided immediately before his or her removal or retention’.  In 2004, the Principal Regulations were amended to remove this phrase to allow other options for return to be considered, such as return to the requesting parent who has relocated to another country.  The retention of the phrase in subregulation 6(2) is an oversight.  The Convention is purposely silent on where the child may be returned.  Subregulation 6(2) refers to the making of an order for the return of a child under Part VII of the Act or under any other law in force in Australia.  The making of such an order is not the making of a return order under the Convention. 

 

Item [12]:  Regulation 7

 

Item 12 amends regulation 7 of the Principal Regulations by redrafting the provision more succinctly.  The phrase ‘the person who holds office as the Commonwealth Central Authority, who is appointed to act as that Authority’ is unnecessary, because the definition of Commonwealth Central Authority in subregulation 2(1) is amended by item 2 to mean the Secretary of the Attorney-General’s Department. 

 

Item [13]:  Part 2

 

Item 13 amends a number of technicalities and semantic infelicities in regulations 11 and 13 by replacing Part 2 of the Principal Regulations. 

 

The heading of Part 2 of the Principal Regulations is amended to rectify a technicality.  The amendment replaces the word ‘central authorities’ with ‘Central Authorities’ with initial upper-case letters.  This is necessary because ‘Central Authority’ is a specifically defined expression in subsection 2(1) of the Principal Regulations. 

 

Regulation 11 of the Principal Regulations is amended to effectively mirror the provisions in regulation 13 more closely in language and content.  Regulations 11 and 13 provide for outgoing and incoming requests, respectively, for the return of a child under the Convention.  Amendments to regulation 11 add three further provisions to allow the Central Authorities to refuse to accept a request for the return of a child abducted from Australia if that request is not in accordance with the Convention: subregulation 11(5); and to provide notice to the applicant as to the reason for the refusal: subregulations 11(6) and 11(7).  There are such provisions under regulation 13 of the Principal Regulations where a request is for the return of a child abducted to Australia and Convention requirements are not met. 

 

Regulation 13 of the Principal Regulations is amended to effectively mirror the amendments to the provisions in regulation 11 more closely in language and content.  The redrafting of regulation 13 also rectifies a number of minor semantic infelicities.  In subregulation 13(1) of the Principal Regulations, for example, a request for the return of a child abducted to Australia refers only to a child who has been removed from a convention country to Australia.  There is no reference to a child who has been retained in Australia.  Under the Convention, removal or retention of a child may be wrongful.  The amendment corrects this by including the words, ‘or has been retained in Australia’. 

 

Subregulation 13(3) of the Principal Regulations is amended to expand upon and thus clarify the notification procedure in the event of the Commonwealth Central Authority refusing a request.  The amendment to subregulation 13(3) becomes subregulations 13(2) and (3). 

 

The term ‘responsible Central Authority’ in paragraph 13(4)(a) of the Principal Regulations is amended to replace the term with ‘State Central Authority’.  This amendment is necessary because the term ‘responsible Central Authority’ is defined in subregulation 2(1) to include the Commonwealth Central Authority in its meaning.  Regulation 13(4) refers to action taken by the Commonwealth Central Authority.  It is incongruous for the Commonwealth Central Authority to transfer a request to a responsible Central Authority when the Commonwealth Central Authority is included in the definition of responsible Central Authority.  

 

Item [14]:  Regulation 14

 

Item 14 amends a number of technicalities and semantic infelicities in regulation 14 by replacing regulation 14 of the Principal Regulations. 

 

Subregulations 14(1) and 14(2) of the Principal Regulations is amended to make clear the types of orders that may be sought by the Central Authority and a person, institution or other body who has rights of custody in relation to the child for the purposes of the Convention. 

 

In the case of a child abducted to Australia, amendment to subregulation 14(1) specifically provides for the seeking of an order for the delivery of the passport of the child, and of any other relevant person, to the appropriate authorities.  This amendment accords with the current practice of the Central Authority. 

 

In the case of a child abducted from Australia, amendment to subregulation 14(2) rectifies a semantic infelicity in regards to the seeking of an order for the issue of a warrant.  The seeking of an order for the issue of a warrant of the kind described in subregulation 14(4) of the Principal Regulations cannot logically be sought if the child has been removed from Australia.  Amendment to subregulation 14(2) provides that such warrants may be sought in the case where there is reasonable grounds to believe that the child will be removed from Australia.  Amendment to subregulation 14(2) also provides for the seeking of an order for the delivery of the passport of the child, and of any other relevant person, to the appropriate authorities in the case where there is reasonable grounds to believe that the child will be removed from Australia. 

 

The remainder of the contents of subregulation 14(2) is amended to remove the reference to the issue of a warrant of the kind described in subregulation 14(4) where the child has been removed from Australia.  Consequential to amendments to subregulation 14(2) described in the above paragraph, subregulation 14(2) of the Principal Regulations is amended to become subregulation 14(3). 

 

Subregulation 14(4) is removed from Part 3 and placed in Part 5 as regulation 31.  The amendments to subregulations 14(1) and 14(2) of the Principal Regulations which refer to the seeking of an order for the issue of a warrant consequently include reference to the issue of a warrant in proposed regulation 31. 

 

Item 14 also adds a new regulation 14A with the heading ‘Further applications to court’.  Subregulation 14A(1) allows the Central Authority, or a person, institution or other body, who has made an application under subregulation14(1), (2) or (3) to make further application to seek orders of the kind referred to in those subregulations.  Subregulation 14A(2) specifies that any further application to seek orders must be made on a separate Form 2 to that of an application initiating proceedings, namely a Form 2 in Schedule 2 to the Family Law Rules 2004, an ‘Application in a Case’.  Currently further applications are made in this way and this amendment makes it clear on its face which is the appropriate form to use. 

 

Item [15]:  Subregulation 15(3)

 

Item 15 removes subregulation 15(3) of the Principal Regulations.  The amendment is preferable, as an order relating to the delivery of the child’s passport is better provided for as an order that may be sought by the Central Authority or a person, institution or other body under subregulations 14(1) and 14(2), grouped together with other orders that the Central Authority or person, institution or other body may seek. 

 

Item [16]:  Subregulation 15(4)

 

Item 16 amends subregulation 15(4) by substituting the word ‘made’ with ‘filed’ so as to make clear that the period of time from which an application takes to be determined by a court commences from the day the application is filed. 

 

Items [17] and [18]:  Paragraphs 15(4)(a) and 15(4)(b)

 

Items 17 and 18 amends paragraphs 15(4)(a) and 15(4)(b) of the Principal Regulations to substitute occurrences of the word ‘request’ (or variations thereof) with ‘ask’ (or variations thereof).  The amendments are necessary because ‘request’ is specifically defined in subregulation 2(1).  The term is used throughout the Principal Regulations to distinguish between a request for administrative assistance under Articles 8 and 21 of the Convention, and an application to court to initiate legal proceedings.  The definition refers to a request for administrative assistance. 

 

Item [19]:  Regulation 16, heading 

 

Item 19 amends the heading of regulation 16 of the Principal Regulations to make clear the purpose of the regulation, namely to mandate a return order (if no exception can be established). 

 

Item [20]:  Paragraphs 16(1)(a) and (b)

 

Item 20 amends paragraph 16(1)(a) of the Principal Regulations consequential to the amendment to define ‘return order’ in subregulation 2(1). 

 

Item 20 amends paragraph 16(1)(b) of the Principal Regulations consequential to the amendment to regulation 28, which provides for the preservation of the original filing date in the case of a change of court venue involving different States or Territories. 

 

Paragraph 16(1)(b) is also amended to substitute the word ‘made’ with ‘filed’.  The amendment makes clear that the provision refers to the filing of an application to court to initiate legal proceedings and does not refer to a request for administrative assistance.  (See items 17 and 18). 

 

Item [21]:  Paragraph 16(2)(a)

 

Item 21 amends paragraph 16(2)(a) of the Principal Regulations consequential to the amendment to define ‘return order’ in subregulation 2(1). 

 

Items [22]:  Paragraph 16(2)(b)

 

Item 22 amends paragraph 16(2)(b) of the Principal Regulations to substitute the word ‘made’ with ‘filed’.  The amendment makes clear that the provision refers to the filing of an application to court to initiate legal proceedings and does not refer to a request for administrative assistance.  (See items 17 and 18). 

 

Item [23]:  Subregulation 16(5)

 

Item 23, in a similar manner to item 11, amends subregulation 16(5) of the Principal Regulations to substitute the phrase ‘to the country in which he or she habitually resided immediately before his or her removal or retention’ with the words ‘under the Convention’.  In 2004, the Principal Regulations were amended to remove this phrase to allow other options for return to be considered, such as return to the requesting parent who has relocated to another country.  The retention of the phrase in subregulation 16(5) is an oversight.  The Convention is purposely silent on where the child may be returned. 

 

Item 23 also amends subregulation 16(5) consequential to the amendment to define ‘return order’ in subregulation 2(1). 

 

Item [24]:  Subregulation 17(2)

 

Item 24 amends technicalities in subregulation 17(2) of the Principal Regulations, such as replacing ‘request’ with ‘ask, and replacing the words ‘to a convention country’ with ‘under the Convention’.  As noted in items 11 and 23, in 2004, the Principal Regulations were amended to remove phrases which referred to the return of a child specifically to allow other options for return to be considered, such as return to the requesting parent who has relocated to another country.  The retention of the phrase in subregulation 17(2) is an oversight.  The Convention is purposely silent on where the child may be returned. 

 

Item [25]:  Paragraph 18(1)(a)

 

Item 25 amends paragraph 18(1)(a) of the Principal Regulations consequential to the amendment to define ‘return order’ in subregulation 2(1). 

 

Item [26]:  Subregulation 18(2)

 

Item 26 amends technicalities in subregulation 18(2) of the Principal Regulations to make the provision identical in form to the same provision in subregulation 29(7) and in accordance with current drafting practice. 

 

Item [27]:  Regulation 19

 

Item 27 amends regulation 19 of the Principal Regulations consequential to the amendment to define ‘return order’ in subregulation 2(1). 

 

Item [28]:  Regulation 19A, including the note

 

Item 28 amends subregulation 19A(1) of the Principal Regulations to enable an Article 3 applicant to apply to the court for a discharge of a return order. 

Item 28 also amends subregulation 19A(2) of the Principal Regulations to enable the court greater discretion to discharge a return order.  Previously the court had to satisfy itself of a cumulative list of four criteria that had to be met before discharging a return order.  The amendment provides for the four criteria as alternatives, rather than cumulative.  Further, the amendment to paragraph 19A(2)(d) lowers the time-frame from two years to one year in which an application for a discharge of a return order can be made.  This two year time-frame has proved ineffective in practice, being too long a period before the court can consider discharging the order, and must be seen in light of the object of the Convention, namely a ‘prompt return’. 

 

Item 28 also amends subregulation 19A(3) by removing the note and clarifying the court’s position to provide that it must – and can only – consider section 111CE of the Act when contemplating a discharge of a return order, if the convention country in question is also a party to the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (the Child Protection Convention). 

 

 

 

Item [29]:  Subregulation 20(1)

 

Item 29 amends subregulation 20(1) of the Principal Regulations to clarify the role of the Central Authority in regards to the making of arrangements for the return of a child under the Convention.  Regulation 20 currently provides that the Central Authority must ‘cause such arrangements as are necessary to be made’ to give effect to a return order.  The amendment to subregulation 20(1) removes the difficult causative/passive construction of ‘causing arrangements to be made’ and substitutes a clearly worded construction that provides for the Central Authority to retain its onus to oversee that arrangements are carried out by the appropriate parties.  The amendment overcomes the effects of the decision of the Full Court of the Family Court in In re F (Hague Convention: Child’s Objections) [2006] FamCA 685 which construed ‘such arrangements’ to include the purchasing of airline tickets for the child and any accompanying adult, and placing the obligation of their purchase on the Central Authority. 

 

Item [30]:  Paragraph 20(2)(a)

 

Item 30 amends paragraph 20(2)(a) of the Principal Regulations consequential to the amendment to define ‘return order’ in subregulation 2(1). 

 

Item [31]:  After subregulation 20(2)

 

Item 31 adds a new subregulation 20(3) after subregulation 20(2) of the Principal Regulations.  The amendment makes clear that the Central Authority – either the Commonwealth Central Authority or the State Central Authority – is not obliged to make or pay for any necessary arrangements required to give effect to a return order. 

 

Item [32]:  Regulation 21

 

Item 32 amends technicalities in regulation 21 of the Principal Regulations, such as the insertion of punctuation.  The amendment adds clarity to the provision. 

 

Item [33]:  Part 4

 

Item 33 amends the access provisions in Part 4 of the Principal Regulations by replacing Part 4.  The amendments result, in the main, in a physical rearrangement of provisions, especially those provisions in regulation 25.  The rearrangement provides clarity and readability.  The language of the provisions has not changed significantly.  The changes to the language of the provisions are to mirror the language of the provisions of Part 2 and Part 3 of the Principal Regulations relating to abduction requests and applications. 

 

The heading of Part 4 of the Principal Regulations is amended to replace the words ‘Applications and requests’ with ‘Requests to Central Authorities and court applications for access’.  The amendment accords with the chronology of a Convention access application – from a request for administrative assistance to an application to court to initiate legal proceedings. 

 

Regulation 23 of the Principal Regulations is removed.  The removal of regulation 23 is preferable, as the regulation sets out the purpose of regulations 24 and 25 which is readily discernable by the headings of the regulations. 

 

Regulation 24 of the Principal Regulations is amended by redrafting the regulation as regulation 23.  The language of the provisions is amended to reflect the wording of the provisions under regulation 11 (request for a return of a child abducted from Australia) more closely. 

 

Regulation 25 of the Principal Regulations is amended to divide regulation 25 into three new sections, namely request for access, application for access and orders, and redrafting the regulation as regulations 24, 25 and 25A.  The amendments rearrange the provisions under regulation 25 to accord with the chronology of a Convention access application. 

 

Similar to subregulation 20(3) (see item 31), regulation 25A includes a provision to make clear the Central Authority – either the Commonwealth Central Authority or the State Central Authority – is not obliged to make or pay for any necessary arrangements required to give effect to an order made under regulation 25A(1). 

 

Items [34], [35] and [36]:  Paragraphs 27(1)(a), (b) and (c)

 

Items 34, 35 and 36 amend paragraphs 27(1)(a),(b) and (c) of the Principal Regulations to rectify minor sematic infelicities and to clarify construction. 

 

Item [37]:  Subregulation 28(1)

 

Item 37 amends subregulation 28(1) of the Principal Regulations to provide for the preservation of the original filing date in the case of a change of court venue involving different States or Territories.  Preserving the original filing date is important because if an application is filed more than one year after the day on which the child was first wrongfully removed from its place of habitual residence, the court must then consider whether the child has settled in its new environment.  (See item 20). 

 

Item [38]:  Subregulation 28(2)

 

Item 38 amends subregulation 28(2) of the Principal Regulations by clarifying that the applicant who makes the original application to a court is not the same applicant who makes a later application to another court. 

 

Item [39]:  Regulation 30

 

Item 39 amends regulation 30 of the Principal Regulations to clarify and define the types of costs that may be sought by a Central Authority or an Article 3 applicant. 

 

Item 39 also amends the Principal Regulations to transpose the warrant provision of subregulations 14(4) and 25(9) to regulation 31.  The amendment is preferable, for compactness and readability.  Subregulations 14(1) and (2), and 25(1) refer to this regulation instead of the provision occurring each time in the subregulation in question. 

 

Item [40]:  Schedule 2, after entry for Brazil

 

Item 40 adds Bulgaria to the list of convention countries in Schedule 2 to the Principal Regulations. 

 

Item [41]:  Schedule 2, after entry for Greece

 

Item 41 adds Guatemala to the list of convention countries in Schedule 2 to the Principal Regulations. 

 

Item [42]:  Schedule 2, after entry for Latvia

 

Item 42 adds Lithuania to the list of convention countries in Schedule 2 to the Principal Regulations. 

 

Item [43]:  Schedule 2, after entry for Luxembourg

 

Item 43 amends the name of the country of the Former Yugoslav Republic of Macedonia to the officially recognised name as listed on the Heads of Government Listing database administered by the Department of Foreign Affairs and Trade. 

 

Item [44]:  Schedule 2, after entry for New Zealand

 

Item 44 adds Nicaragua to the list of convention countries in Schedule 2 to the Principal Regulations. 

 

Item [45]:  Schedule 2, entry for Serbia and Montenegro

 

Item 45 amends the name of the country of Serbia and Montenegro to the officially recognised name as listed on the Heads of Government Listing database administered by the Department of Foreign Affairs and Trade. 

 

Item [46]:  Schedule 2, entry for The former Yugoslav Republic of Macedonia

 

Item 46 removes the entry of the former Yugoslav Republic of Macedonia, which would be replaced with its officially recognised name (see item 43), and replaces that entry with the addition of Thailand to the list of convention countries in Schedule 2 to the Principal Regulations. 

 

Item [47]:  Schedule 2, entry for United Kingdom of Great Britain and Northern Ireland

 

Item 47 amends the entry for the United Kingdom of Great Britain as its officially recognised name as listed on the Heads of Government Listing database administered by the Department of Foreign Affairs and Trade.  Item 47 also adds the Bailiwick of Jersey to the list of territories for the United Kingdom of Great Britain. 

 

Item [48] – Schedule 3, Form 1

 

Item 48 amends the reference in Form 1 to the full name of the Principal Regulations. 

 

Item [49]:  Schedule 3, Form 2, heading

 

Item 49 amends the heading of Form 2 to distinguish between proceedings for access and proceedings other than for access.  Item 49 also makes consequential amendments to the heading of Form 2 as a result of changes to Part 3 of the Principal Regulations. 

 

Item [50]:  Schedule 3, Form 2

 

Item 50 amends the reference in Form 2 to the full name of the Principal Regulations. 

 

Item [51]:  Schedule 3, Form 2A, heading

 

Item 51 makes a consequential amendment to the heading of Form 2A as a result of changes to Part 3 of the Principal Regulations. 

 

Item [52]:  Schedule 3, Form 2A

 

Item 52 amends the reference in Form 2A to the full name of the Principal Regulations. 

 

Item [53]:  Schedule 3, Form 2B, heading

 

Item 53 makes a consequential amendment to the heading of Form 2B as a result of changes to Part 3 of the Principal Regulations. 

 

Item [54]:  Schedule 3, Form 2B

 

Item 54 amends the reference in Form 2B to the full name of the Principal Regulations. 

 

Item [55]:  Schedule 3, Form 2C, heading

 

Item 55 makes a consequential amendment to the heading of Form 2C as a result of changes to Part 4 of the Principal Regulations. 

 

Item [56]:  Schedule 3, Form 2C

 

Item 56 makes consequential amendments to the text of Form 2C as a result of changes to Parts 3 and 4 of the Principal Regulations. 

 

 

 

 

 

Item [57]:  Schedule 3, Form 3, heading

 

Item 57 amends the heading of Form 4 to mirror the heading of regulation 23.  Item 57 also makes a consequential amendment to the heading of Form 3 as a result of changes to Part 4 of the Principal Regulations. 

 

Item [58]:  Schedule 3, Form 3

 

Item 58 amends the reference in Form 3 to the full name of the Principal Regulations. 

 

Item [59]:  Schedule 3, Form 4, heading

 

Item 59 amends the heading of Form 4 to distinguish between proceedings for access and proceedings other than for access.  Item 59 makes a consequential amendment to the heading of Form 4 as a result of changes to Part 4 of the Principal Regulations. 

 

Item [60]:  Schedule 3, Form 4

 

Item 60 amends the reference in Form 4 to the full name of the Principal Regulations. 

 

Item [61]:  Schedule 3, Form 4A, heading

 

Item 61 amends the heading of Form 4A to distinguish between proceedings for access and proceedings other than for access.  Item 61 also makes a consequential amendment to the heading of Form 4A as a result of changes to Part 4 of the Principal Regulations. 

 

Item [62]:  Schedule 3, Form 4A

 

Item 62 amends the reference in Form 4A to the full name of the Principal Regulations. 

 

Item [63]:  Schedule 3, Form 4B, heading

 

Item 63 amends the heading of Form 4B to distinguish between proceedings for access and proceedings other than for access.  Item 63 also makes a consequential amendment to the heading of Form 4B as a result of changes to Part 4 of the Principal Regulations. 

 

Item [64]: Schedule 3, Form 4B

 

Item 64 amends the reference in Form 4B to the full name of the Principal Regulations. 

 

Item [65]:  Further amendments 

 

Item 65 amends subregulations 2(1A), (1B) and (1C), 5(1), 6(1), 8(1), 26(1) and (6) to rectify a technicality in the Principal Regulations. The word ‘regulations’ is replaced by ‘Regulations’ with an initial upper-case letter to indicate that the word refers to the Principal Regulations generally and not to any specific regulation or regulations. 

 

Item 65 also amends the phrase ‘a person, an institution or another body’ to ‘a person, institution or other body’.  This amendment reflects the wording of the Convention more closely and accords to the ejusdem generis rule in statutory construction, albeit in acute form, where general words following particular words will often be construed as being limited to the same kind as the particular words.