Family Law Amendment (Child Protection Convention) Act 2002 (Cth)

Family Law Amendment (Child Protection Convention) Act 2002 No. 69, 2002 An Act to implement the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co‑operation in respect of Parental Responsibility and Measures for the Protection of Children, and for related purposes Contents 1 Short title................................... 2 Commencement............................... 3 Schedule(s).................................. Schedule 1—Amendment of the Family Law Act 1975 Family Law Amendment (Child Protection Convention) Act 2002 No. 69, 2002 An Act to implement the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co‑operation in respect of Parental Responsibility and Measures for the Protection of Children, and for related purposes [Assented to 3 September 2002] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Family Law Amendment (Child Protection Convention) Act 2002. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table. Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day on which this Act receives the Royal Assent 3 September 2002 2. Schedule 1 The day on which the Child Protection Convention enters into force in Australia 1 August 2003 Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent. (2) Column 3 of the table is for additional information that is not part of this Act. This information may be included in any published version of this Act. (3) In this section: Child Protection Convention means the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co‑operation in respect of Parental Responsibility and Measures for the Protection of Children, signed at The Hague on 19 October 1996. 3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Amendment of the Family Law Act 1975 1 At the end of subsection 31(2) Add: Note: Division 4 of Part XIIIAA (International protection of children) may affect the jurisdiction of the Court. 2 At the end of paragraph 39(5)(a) Add "or". 3 At the end of paragraph 39(5)(b) Add "or". 4 After paragraph 39(5)(d) Insert: (da) proceedings are instituted under Division 4 of Part XIIIAA or under regulations made for the purposes of section 111CZ; or 5 At the end of subsection 39(5A) Add: ; or (d) proceedings are instituted under Division 4 of Part XIIIAA or under regulations made for the purposes of section 111CZ. 6 At the end of paragraph 39(6)(a) Add "or". 7 At the end of paragraph 39(6)(b) Add "or". 8 After paragraph 39(6)(d) Insert: (da) proceedings are instituted under Division 4 of Part XIIIAA or under regulations made for the purposes of section 111CZ; or 9 At the end of subsection 42(2) Add: Note: Subdivision D of Division 4 of Part XIIIAA (Applicable law) may affect the law to be applied by a court. 10 At the end of section 61C Add: Note: Section 111CS may affect the attribution of parental responsibility for a child. 11 At the end of section 63E Add: Note: Division 4 of Part XIIIAA (International protection of children) may affect the court's power to register a parenting plan. 12 At the end of subsection 63F(1) Add: Note: Section 111CT may affect the operation of the child welfare provisions of a registered parenting plan. 13 At the end of subsection 65D(1) Add: Note: Division 4 of Part XIIIAA (International protection of children) may affect the jurisdiction of a court to make a parenting order. 14 At the end of section 67K Add: (2) For the purposes of the Child Protection Convention, a person (including the Commonwealth central authority) may apply to a court for a location order. (3) In subsection (2): Child Protection Convention has the same meaning as in section 111CA. Commonwealth central authority has the same meaning as in section 111CA. 15 Subsection 67M(2) After "this Part", insert "or section 111CX". 16 Subsection 67N(2) After "this Part", insert "or section 111CX". 17 At the end of subsection 67P(1) Add: ; or (f) with the leave of the court that made the location order: (i) the Commonwealth central authority; or (ii) a central authority or a competent authority of a Convention country. 18 At the end of section 67P Add: (3) In paragraph (1)(f): central authority has the same meaning as in section 111CA. Commonwealth central authority has the same meaning as in section 111CA. competent authority has the same meaning as in section 111CA. Convention country has the same meaning as in section 111CA. 19 At the end of subsection 67ZC(1) Add: Note: Division 4 of Part XIIIAA (International protection of children) may affect the jurisdiction of a court to make an order relating to the welfare of a child. 20 At the end of section 69E Add: Note: Division 4 of Part XIIIAA (International protection of children) has effect despite this section. 21 At the end of section 70H Add: Note: Division 4 of Part XIIIAA (International protection of children) may affect the operation of a registered overseas child order. 22 Before section 110 Insert: Division 1—International maintenance orders and agreements etc. 23 After section 111A Insert: Division 2—International child abduction 24 After section 111B Insert: Division 3—International agreements about adoption etc. 25 After section 111C Insert: Division 4—International protection of children Subdivision A—Preliminary 111CA Definitions (1) In this Division: another country means a Convention country or a non‑Convention country. Australia includes the external Territories. central authority of a Convention country means: (a) if there is one central authority of the Convention country under Article 29 of the Child Protection Convention—the Convention country's central authority; or (b) otherwise—the central authority designated, under Article 29 of the Child Protection Convention, as the Convention country's central authority to which any communication may be addressed for transmission to the appropriate central authority of the Convention country. Child Protection Convention means the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co‑operation in respect of Parental Responsibility and Measures for the Protection of Children signed at The Hague on 19 October 1996, a copy of the English text of which is set out in Schedule 1. Commonwealth central authority means the Secretary of the Attorney‑General's Department. Commonwealth personal protection measure relating to a child means a measure (within the meaning of the Child Protection Convention) under this Act that is directed to the protection of the person of the child. Commonwealth property protection measure relating to a child means a measure (within the meaning of the Child Protection Convention) under this Act for appointing, or deciding the powers of, a guardian of the child's property. competent authority: (a) competent authority of Australia means an entity that has responsibility or authority under the law in force in Australia, or part of Australia, to take measures or make decisions about: (i) protecting the person of a child; or (ii) appointing or deciding the powers of a guardian of a child's property; and (b) competent authority of a Convention country means an entity that has responsibility or authority under the law in force in the Convention country to take, or make decisions about, a foreign measure relating to a child; and (c) competent authority of a non‑Convention country means an entity that has responsibility or authority under the law in force in the country to take measures or make decisions about: (i) protecting the person of a child; or (ii) appointing or deciding the powers of a guardian of a child's property. Convention country means a country, other than Australia, for which the Child Protection Convention has entered into force. country of refuge of a child means a country in which the child is present as a refugee child. entity includes the following: (a) an individual; (b) a corporation; (c) an unincorporated body; (d) a government authority or body; (e) a court or tribunal. foreign measure means: (a) a foreign personal protection measure; or (b) a foreign property protection measure. foreign personal protection measure relating to a child means a measure (within the meaning of the Child Protection Convention) taken by a competent authority of a Convention country for protecting the person of the child. foreign property protection measure relating to a child means a measure (within the meaning of the Child Protection Convention) taken by a competent authority of a Convention country for appointing, or deciding the powers of, a guardian of the child's property. non‑Convention country means a country for which the Child Protection Convention has not entered into force. parental responsibility has the same meaning as in the Child Protection Convention. refugee child means a child: (a) who is a refugee; or (b) who is internationally displaced due to disturbances occurring in his or her country of habitual residence; or (c) whose country of habitual residence cannot be determined. Territory includes each external Territory. (2) Unless the contrary intention appears, expressions used: (a) in this Division; or (b) in regulations made for the purposes of this Division; have the same meaning as they have in the Child Protection Convention. 111CB Relationship between this Division and other provisions (1) This Division has effect despite the rest of this Act, except sections 69ZK and 111B and the regulations made for the purposes of section 111B. (2) This Division, except section 111CZ, has effect subject to sections 69ZK and 111B and the regulations made for the purposes of section 111B. (3) Section 111CZ, and regulations made for the purposes of that section, have effect despite section 69ZK. Subdivision B—Jurisdiction for the person of a child 111CC Application of this Subdivision This Subdivision applies only if an issue under this Act is whether a court, as opposed to any of the following authorities, has jurisdiction to take measures directed to the protection of the person of a child: (a) a central authority or competent authority of a Convention country; (b) a competent authority of a non‑Convention country. 111CD Jurisdiction relating to the person of a child (1) A court may exercise jurisdiction for a Commonwealth personal protection measure only in relation to: (a) a child who is present and habitually resident in Australia; or (b) a child who is present in Australia and habitually resident in a Convention country, if: (i) the child's protection requires taking the measure as a matter of urgency; or (ii) the measure is provisional and limited in its territorial effect to Australia; or (iii) the child is a refugee child; or (iv) a request to assume jurisdiction is made to the court by, or at the invitation of, a competent authority of the country of the child's habitual residence; or (v) a competent authority of the country of the child's habitual residence agrees to the court assuming jurisdiction; or (vi) the court is exercising jurisdiction in proceedings concerning the divorce or separation of the child's parents or the annulment of their marriage (but see subsection (3)); or (c) a child who is present in a Convention country, if: (i) the child is habitually resident in Australia; or (ii) the child has been wrongfully removed from or retained outside Australia and the court keeps jurisdiction under Article 7 of the Child Protection Convention; or (iii) a request to assume jurisdiction is made to the court by, or at the invitation of, a competent authority of the country of the child's habitual residence or country of refuge; or (iv) a competent authority of the country of the child's habitual residence or country of refuge agrees to the court assuming jurisdiction; or (v) the child is habitually resident in a Convention country and the court is exercising jurisdiction in proceedings concerning the divorce or separation of the child's parents or the annulment of their marriage (but see subsection (3)); or (d) a child who is present in Australia and is a refugee child; or (e) a child who is present in a non‑Convention country, if: (i) the child is habitually resident in Australia; and (ii) any of paragraphs 69E(1)(b) to (e) applies to the child; or (f) a child who is present in Australia, if: (i) the child is habitually resident in a non‑Convention country; and (ii) any of paragraphs 69E(1)(b) to (e) applies to the child. (2) A court may only exercise jurisdiction in accordance with subparagraph (1)(b)(ii) if the measure is not incompatible with a foreign measure already taken by a competent authority of a Convention country under Articles 5 to 10 of the Child Protection Convention. (3) A court may only exercise jurisdiction in accordance with subparagraph (1)(b)(vi) or (c)(v) for a Commonwealth personal protection measure relating to a child if: (a) one or both of the child's parents are habitually resident in Australia when the proceedings referred to in that subparagraph begin; and (b) one or both of the parents have parental responsibility for the child; and (c) the jurisdiction of the court to take the measure is accepted by the parents and each other person with parental responsibility for the child; and (d) the exercise of jurisdiction to take the measure is in the best interests of the child; and (e) the proceedings on the application for divorce or separation of the child's parents or the annulment of their marriage have not been finalised. (4) Paragraphs 111CD(1)(a) to (d) are subject to the limitations in sections 111CE, 111CF and 111CH. 111CE Limitation when a child is wrongfully removed from or retained outside a Convention country A court must not, other than in a case of urgency, exercise jurisdiction in accordance with paragraph 111CD(1)(a), (b), (c) or (d) to take a Commonwealth personal protection measure relating to a child if: (a) the child has been wrongfully removed from or retained outside a Convention country; and (b) an authority of the Convention country keeps jurisdiction under Article 7 of the Child Protection Convention. 111CF Limitations when prior proceedings pending in a Convention country (1) This section applies to the exercise of jurisdiction by a court in accordance with paragraph 111CD(1)(a), subparagraph 111CD(1)(b)(iii), (iv), (v) or (vi) or paragraph 111CD(1)(c) or (d). (2) The court must not exercise that jurisdiction to take a Commonwealth personal protection measure relating to a child if: (a) a corresponding measure has been sought from a competent authority of a Convention country at the time of commencement of the proceedings before the court; and (b) any of the following applies: (i) the child is habitually resident in the Convention country; (ii) the child is present in the Convention country and is a refugee child; (iii) a request to assume jurisdiction is made to the competent authority of the Convention country by, or at the invitation of, a competent authority of the country of the child's habitual residence or country of refuge; (iv) a competent authority of the country of the child's habitual residence or country of refuge agrees to the competent authority of the Convention country assuming jurisdiction; (v) the competent authority of the Convention country is exercising jurisdiction in proceedings concerning the divorce or separation of the child's parents or the annulment of their marriage (but see subsection (3)); (vi) the child has been wrongfully removed from or retained outside the Convention country and a competent authority of the Convention country keeps jurisdiction under Article 7 of the Child Protection Convention. (3) Subparagraph (2)(b)(v) only applies (subject to subsection (4)) if: (a) one or both of the child's parents are habitually resident in the Convention country when the proceedings referred to in that subparagraph commence; and (b) one or both of the parents has parental responsibility for the child; and (c) the jurisdiction of the competent authority of the Convention country to take the measure is accepted by the parents and each other person with parental responsibility for the child; and (d) the exercise of jurisdiction to take the measure is in the best interests of the child; and (e) the proceedings on the application for divorce or separation of the child's parents or the annulment of their marriage have not been finalised. (4) Subsection (2) does not apply if the competent authority of the Convention country has declined jurisdiction or is no longer considering taking the measure sought. 111CG If a court is asked to assume jurisdiction (1) A court may, if it considers that it is in the child's best interests, accept or reject a request made under Article 8 of the Child Protection Convention by, or at the invitation of, a competent authority of a Convention country for the court to assume jurisdiction to take a Commonwealth personal protection measure relating to the child. (2) A court may order, or invite the parties to proceedings before the court to ask, the Commonwealth central authority to do both of the following in a way that the Commonwealth central authority considers appropriate: (a) to request, under Article 9 of the Child Protection Convention, that a competent authority of a Convention country agree to the court assuming jurisdiction to take a Commonwealth personal protection measure relating to the child; (b) to report to the court about the outcome of the request. (3) The court may only make the order or issue the invitation under subsection (2) if it considers that it is better placed than the competent authority to assess the child's best interests. 111CH Limitation if a competent authority of a Convention country is asked to assume jurisdiction (1) The court may order, or invite the parties to proceedings before the court to ask the Commonwealth central authority, in a way the Commonwealth central authority considers appropriate, to request a competent authority described in Article 8, paragraph 2, of the Child Protection Convention: (a) to assume jurisdiction under Article 8 of the Convention for protecting the person of the child; and (b) as the competent authority considers necessary, to take measures to protect the person of the child; and (c) to report to the court about the outcome of the request. (2) In addition, the court may make any other order it considers necessary for an order under subsection (1). (3) The court may only make the order or issue the invitation under subsection (1) if the court considers that the competent authority is better placed to assess the child's best interests. (4) The court may accept or reject a request under Article 9 of the Child Protection Convention made by, or at the invitation of, a competent authority of a Convention country described in Article 8, paragraph 2 of the Convention, for the competent authority to assume jurisdiction to take a measure for protecting the person of the child. (5) If the competent authority assumes jurisdiction under the request, a court must not exercise jurisdiction in accordance with paragraph 111CD(1)(a), subparagraphs 111CD(1)(b)(iii) to (vi), or paragraph 111CD(1)(c) or (d), while the competent authority continues to exercise its jurisdiction. 111CI When a certain Commonwealth personal protection measure lapses (1) A Commonwealth personal protection measure relating to a child that is taken by a court exercising jurisdiction in accordance with subparagraph 111CD(1)(b)(i) or (ii) lapses if: (a) a foreign personal protection measure relating to the child is taken by a competent authority of a Convention country; and (b) any of the following applies: (i) the child is habitually resident in the Convention country; (ii) the child is present in the Convention country and is a refugee child; (iii) a request to assume jurisdiction is made to the competent authority of the Convention country by, or at the invitation of, a competent authority of the country of the child's habitual residence; (iv) a competent authority of the country of the child's habitual residence agrees to the competent authority of the Convention country assuming jurisdiction; (v) a competent authority of the Convention country is exercising jurisdiction in proceedings concerning the divorce or separation of the child's parents or the annulment of their marriage (but see subsection (2)); (vi) the child has been wrongfully removed from or retained outside the Convention country and a competent authority of the Convention country keeps jurisdiction under Article 7 of the Child Protection Convention. (2) Subparagraph (1)(b)(v) only applies if: (a) one or both of the child's parents are habitually resident in the Convention country when the proceedings referred to in that subparagraph are started; and (b) one or both of the parents has parental responsibility for the child; and (c) the jurisdiction of the competent authority of the Convention country to take the measure is accepted by the parents and each other person with parental responsibility for the child; and (d) the exercise of jurisdiction to take the measure is in the best interests of the child; and (e) the proceedings on the application for divorce or separation of the child's parents or the annulment of their marriage have not been finalised. (3) A Commonwealth personal protection measure relating to a child that is taken by a court exercising jurisdiction in a case of urgency, or in the taking of a measure of a provisional character, lapses if: (a) a measure required by the situation for protecting the person of the child is taken by a competent authority of a non‑Convention country; and (b) the measure is registered: (i) in accordance with regulations made for the purposes of section 70G; or (ii) under a law of a State or Territory. Subdivision C—Jurisdiction for decisions about a guardian of a child's property 111CJ Application of this Subdivision This Subdivision applies only if an issue under this Act is whether a court, as opposed to any of the following authorities, has jurisdiction to appoint, or determine the powers of, a guardian of a child's property: (a) a central authority or competent authority of a Convention country; (b) a competent authority of a non‑Convention country. 111CK Jurisdiction to appoint, or determine the powers of, a guardian for a child's property (1) A court may exercise jurisdiction for a Commonwealth property protection measure only in relation to: (a) a child who is habitually resident in Australia; or (b) a child who is habitually resident in a Convention country, if: (i) the protection of the child's property in Australia requires taking the measure as a matter of urgency; or (ii) the measure is provisional and limited in its territorial effect to property in Australia; or (iii) a request to assume jurisdiction is made to the court by, or at the invitation of, a competent authority of the country of the child's habitual residence or country of refuge; or (iv) a competent authority of the country of the child's habitual residence or country of refuge agrees to the court assuming jurisdiction; or (v) the child has been wrongfully removed from or retained outside Australia and the court keeps jurisdiction under Article 7 of the Child Protection Convention; or (vi) the court is exercising jurisdiction in proceedings concerning the divorce or separation of the child's parents or the annulment of their marriage (but see subsection (3)); or (c) a child who is present in Australia and is a refugee child; or (d) a child who is present in a non‑Convention country, if: (i) the child is habitually resident in Australia; and (ii) any of paragraphs 69E(1)(b) to (e) applies to the child; or (e) a child who is present in Australia, if: (i) the child is habitually resident in a non‑Convention country; and (ii) any of paragraphs 69E(1)(b) to (e) applies to the child. (2) A court may only exercise jurisdiction in accordance with subparagraph (1)(b)(ii) if the measure is not incompatible with a foreign measure already taken by a competent authority of a Convention country under Articles 5 to 10 of the Child Protection Convention. (3) A court may only exercise jurisdiction in accordance with subparagraph (1)(b)(vi) for a Commonwealth property protection measure relating to a child if: (a) one or both of the child's parents are habitually resident in Australia when the proceedings referred to in that subparagraph begin; and (b) one or both of the parents have parental responsibility for the child; and (c) the jurisdiction of the court to take the measure is accepted by the parents and each other person with parental responsibility for the child; and (d) the exercise of jurisdiction to take the measure is in the best interests of the child; and (e) the proceedings on the application for divorce or separation of the child's parents or the annulment of their marriage have not been finalised. (4) Paragraphs (1)(a) to (c) are subject to the limitations in sections 111CL, 111CM and 111CO. 111CL Limitation when a child is wrongfully removed from or retained outside a Convention country A court must not, other than in a case of urgency, exercise jurisdiction in accordance with paragraph 111CK(1)(a), (b) or (c) to take a Commonwealth property protection measure relating to a child if: (a) the child has been wrongfully removed from or retained outside a Convention country; and (b) an authority of the Convention country keeps jurisdiction under Article 7 of the Child Protection Convention. 111CM Limitations when prior proceedings pending in a Convention country (1) This section applies to the exercise of jurisdiction by a court in accordance with paragraph 111CK(1)(a), subparagraph 111CK(1)(b)(iii), (iv), (v) or (vi) or paragraph 111CK(1)(c). (2) The court must not exercise that jurisdiction to take a Commonwealth property protection measure relating to a child if: (a) a corresponding measure has been sought from a competent authority of a Convention country at the time of commencement of proceedings before the court; and (b) any of the following applies: (i) the child is habitually resident in the Convention country; (ii) the child is present in the Convention country and is a refugee child; (iii) a request to assume jurisdiction is made to a competent authority of the country of the child's habitual residence or country of refuge; (iv) a competent authority of the country of the child's habitual residence or country of refuge agrees to the competent authority assuming jurisdiction; (v) the competent authority of the Convention country is exercising jurisdiction in proceedings concerning the divorce or separation of the child's parents or the annulment of their marriage (but see subsection (3)); (vi) the child has been wrongfully removed from or retained outside the Convention country and a competent authority of the Convention country keeps jurisdiction under Article 7 of the Child Protection Convention. (3) Subparagraph (2)(b)(v) only applies (subject to subsection (4)) if: (a) one or both of the child's parents are habitually resident in the Convention country when the proceedings referred to in that subparagraph are commenced; and (b) one or both of the parents have parental responsibility for the child; and (c) the jurisdiction of the competent authority of the Convention country to take the measure is accepted by the parents and each other person with parental responsibility for the child; and (d) the exercise of jurisdiction to take the measure is in the best interests of the child; and (e) the proceedings on the application for divorce or separation of the child's parents or the annulment of their marriage have not been finalised. (4) Subsection (2) does not apply if the competent authority of the Convention country has declined jurisdiction or is no longer considering taking the measure sought. 111CN If a court is asked to assume jurisdiction (1) A court may, if it considers that it is in the child's best interests, accept or reject a request made under Article 8 of the Child Protection Convention by, or at the invitation of, a competent authority of a Convention country for the court to assume jurisdiction to take a Commonwealth property protection measure relating to the child. (2) A court may order, or invite the parties to proceedings before the court to ask, the Commonwealth central authority to do both of the following in a way that the Commonwealth central authority considers appropriate: (a) to request, under Article 9 of the Child Protection Convention, that a competent authority of a Convention country agree to the court assuming jurisdiction to take a Commonwealth property protection measure relating to the child; (b) to report to the court about the outcome of the request. (3) The court may only make the order or issue the invitation under subsection (2) if it considers that it is better placed than the competent authority to assess the child's best interests. 111CO Limitation if a competent authority of a Convention country is asked to assume jurisdiction (1) The court may order, or invite the parties to proceedings before the court to ask the Commonwealth central authority, in a way the Commonwealth central authority considers appropriate, to request a competent authority described in Article 8, paragraph 2, of the Child Protection Convention: (a) to assume jurisdiction under Article 8 of the Convention for appointing, or deciding the powers of, a guardian of the child's property; and (b) as the competent authority considers necessary, to take a measure appointing, or deciding the powers of, a guardian of the child's property; and (c) to report to the court about the outcome of the request. (2) In addition, the court may make any other order it considers necessary for an order under subsection (1). (3) The court may only make the order or issue the invitation under subsection (1) if the court considers that the competent authority is better placed to assess the child's best interests. (4) The court may accept or reject a request under Article 9 of the Child Protection Convention made by, or at the invitation of, a competent authority of a Convention country described in Article 8, paragraph 2 of the Convention, for the competent authority to assume jurisdiction to take a measure for the protection of the child's property. (5) If the competent authority assumes jurisdiction under the request, a court must not exercise jurisdiction in accordance with paragraph 111CK(a) or subparagraphs 111CK(1)(b)(iii) to (vi) or paragraph 111CK(1)(c), while the competent authority continues to exercise its jurisdiction. 111CP When a certain Commonwealth property protection measure lapses (1) A Commonwealth property protection measure relating to a child that is taken by a court exercising jurisdiction in accordance with subparagraph 111CK(1)(b)(i) or (ii) lapses if: (a) a foreign property protection measure relating to the child is taken by a competent authority of a Convention country; and (b) any of the following applies: (i) the child is habitually resident in the Convention country; (ii) the child is present in the Convention country and is a refugee child; (iii) a request to assume jurisdiction is made to the competent a