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THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
FAMILY LAW AMENDMENT
(CHILD PROTECTION CONVENTION)
BILL 2002
EXPLANATORY MEMORANDUM
(Circulated by the authority of the Attorney-General
the Honourable Daryl Williams AM QC MP)
GENERAL OUTLINE
The Family Law Amendment (Child Protection Convention) Bill 2002 amends the Family Law Act 1975 to enable Australia to ratify the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children 1996.
The Convention establishes conflicts of law rules to be applied in parental responsibility litigation which has an international aspect. These rules govern the questions whether a court has jurisdiction to hear an international parental responsibility dispute, which country's law is to be applied in determining international parental responsibility disputes, what conditions must be satisfied to ensure international recognition and enforcement of parenting orders and what obligations courts in Australia and overseas have to co-operate in the protection of children.
The policy objectives of the Convention, and an outline of the proposed legislative scheme for implementing the Convention, were set out in issues papers released for comment in 1998: “Hague Convention on the Protection of Children - proposed amendments to family law legislation” and “Hague Convention on the Protection of Children - proposed amendments to State and Territory laws”.
FINANCIAL IMPACT STATEMENT
The proposed amendments are expected to have no impact on Commonwealth expenditure or revenue.
NOTES ON CLAUSES
Clause 1 Short title
1. This clause is a formal provision that provides for the Bill, when enacted, to be cited as the Family Law Amendment (Child Protection Convention) Act 2002.
Clause 2 Commencement
2. This clause provides for the date on which the Bill, when enacted, will commence. Subclause 2(1) the Bill provides that formal clauses of the Bill (clauses 1, 2 and 3) will come into effect on the day on which the Bill receives the Royal Assent and that Schedule 1 of the Bill will commence on the day on which the Child Protection Convention enters into force for Australia. Under article 61 of the Convention, the Convention will enter into force for Australia three months after Australia’s instrument of ratification is lodged with the depositary of the Convention. Subclause 2(3) provides that Child Protection Convention means the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children 1996. Item 26 of the Bill inserts a copy of the text of the Convention in a schedule to the Family Law Act 1975 (the Act).
Clause 3 Schedule(s)
3. This clause provides in effect that the Act is amended as set out in Schedule 1 of the Bill.
SCHEDULE 1- AMENDMENT OF THE FAMILY LAW ACT 1975
Item 1 - Subsection 31(2)
4. Item 1 inserts a note after subsection 31(2) of the Act consequentially upon item 25 of the Bill. Subsection 31(2) provides that the jurisdiction of the Family Court may be exercised in relation to persons or things outside Australia. Item 1 inserts a note after the subsection for the purpose of drawing attention to new provisions (Division 4 of Part XIIIAA inserted by item 25 of the Bill) relating to the jurisdiction of courts in international matters.
Items 2, 3 and 4 - Paragraphs 39(5)(a) (b) (d)
5. Items 2, 3 and 4 amend subsection 39(5) of the Act consequentially upon item 25 of the Bill. Subsection 39(5) confers jurisdiction on the Family Court and State/Territory Supreme Courts with respect to matters arising under specified provisions of the Act. Items 2, 3 and 4 amend the list of specified provisions by adding a reference to proceedings under new provisions in Division 4 of Part XIIIAA inserted by item 25 of the Bill (such as proceedings under new subsections 111CG(1), 111CH(4), 111CN(1), 111CO(4), or 111CW(3)).
Item 5 - Subsection 39(5A)
6. Item 5 amends subsection 39(5A) of the Act consequentially upon item 25 of the Bill. Subsection 39(5A) confers jurisdiction on the Federal Magistrates Court with respect to matters arising under specified provisions of the Act. Item 5 amends the list of specified provisions by adding a reference to proceedings under new provisions in Division 4 of Part XIIIAA inserted by item 25 of the Bill (such as proceedings under new subsections 111CG(1), 111CH(4), 111CN(1), 111CO(4), or 111CW(3)).
Items 6, 7 and 8 - Subsection 39(6)
7. Items 6, 7 and 8 amend subsection 39(6) of the Act consequentially upon item 25 of the Bill. Subsection 39(6) confers jurisdiction on courts of summary jurisdiction with respect to matters arising under specified provisions of the Act. Items 6, 7 and 8 amend the list of specified provisions by adding a reference to proceedings under new provisions in Division 4 of Part XIIIAA inserted by item 25 of the Bill (such as proceedings under new subsections 111CG(1), 111CH(4), 111CN(1), 111CO(4), or 111CW(3)).
Item 9 - Subsection 42(2)
8. Item 9 inserts a note after subsection 42(2) of the Act consequentially upon item 25 of the Bill. Subsection 42(2) provides that a court shall apply the laws of another country where to do so would be in accordance with common law rules of private international law. Item 9 inserts a note after the subsection for the purpose of drawing attention to new provisions (subdivision D of Division 4 of Part XIIIAA inserted by item 25 of the Bill) relating to the law to be applied in proceedings relating to children.
Item 10 - Section 61C
9. Item 10 inserts a note after section 61C of the Act consequentially upon item 25 of the Bill. Section 61C provides in effect that each of the parents of a child has parental responsibility for the child by operation of the Act. Item 10 inserts a note after the section for the purpose of drawing attention to a new provision (section 111CS in Division 4 of Part XIIIAA inserted by item 25 of the Bill) under which parental responsibility for a child may be determined by operation of a law in a Convention country in which the child is habitually resident.
Item 11 - Section 63E
10. Item 11 inserts a note after section 63E of the Act consequentially upon item 25 of the Bill. Section 63E provides that a parenting plan may be registered by a court. Item 11 inserts a note after the subsection for the purpose of drawing attention to new provisions (Division 4 of Part XIIIAA inserted by item 25 of the Bill) which affect the jurisdiction of courts in international matters and relate to the effect of registration in Australia of a measure taken by a court or authority in another Convention country.
Item 12 - Section 63F
11. Item 12 inserts a note after section 63F of the Act consequentially upon item 25 of the Bill. Section 63F provides that the child welfare provisions of a registered parenting plan have effect as if they were an order by a court. Item 12 inserts a note after the section for the purpose of drawing attention to a new provision (section 111CT in Part XIIIAA inserted by item 25 of the Bill) relating to the effect of registration in Australia of a measure taken by a court or authority in another Convention country.
Item 13 - Subsection 65D(1)
12. Item 13 inserts a note after subsection 65D(1) of the Act consequentially upon item 25 of the Bill. Subsection 65D(1) provides that a court may make a parenting order. Item 13 inserts a note after the subsection for the purpose of drawing attention to new provisions (Division 4 of Part XIIIAA inserted by item 25 of the Bill) relating to the jurisdiction of courts in international matters.
Item 14 - Section 67K
13. Item 14 amends section 67K of the Act. Section 67K provides that certain persons may apply for a location order for the purpose of locating a child. To give effect to article 31c of the Child Protection Convention, item 14 amends section 67K to provide that a person may apply for a location order for the purposes of the Child Protection Convention. New section 111CX (inserted by item 25 of the Bill) enables proceedings to be instituted to obtain a location order for the purposes of the Convention.
Item 15 - Subsection 67M(2)
14. Item 15 amends subsection 67M(2) of the Act. Subsection 67M(2) provides that, in certain specified proceedings, a court may make an order requiring a person to disclose information to the court for the purpose of locating a child. To give effect to article 31c of the Child Protection Convention, item 15 amends the list of specified provisions in subsection 67M(2) by adding a reference to proceedings under new section 111CX (inserted by item 25 of the Bill) which enables proceedings to be instituted to obtain a location order for the purposes of the Convention.
Item 16 - Subsection 67N(2)
15. Item 16 amends subsection 67N(2) of the Act. Subsection 67N(2) provides that, in certain specified proceedings, a court may make an order requiring a Commonwealth Department or instrumentality to disclose information to the court for the purpose of locating a child. To give effect to article 31c of the Child Protection Convention, item 16 amends the list of specified provisions in subsection 67N(2) by adding a reference to proceedings under new section 111CX (inserted by item 25 of the Bill) which enables proceedings to be instituted to obtain a Commonwealth information order for the purposes of the Convention.
Items 17 and 18 - Section 67P
16. Items 17 and 18 amend section 67P of the Act. Section 67P provides that information obtained under a location order may not be disclosed by a court except to specified persons. To give effect to article 31c of the Child Protection Convention, items 17 and 18 amend the list of specified persons to include a central authority or competent authority of a Convention country and the Commonwealth Central Authority.
Item 19 - Subsection 67ZC(1)
17. Item 19 inserts a note after subsection 67ZC(1) of the Act consequentially upon item 25 of the Bill. Subsection 67ZC(1) provides that a court may make an order relating to the welfare of children. Item 19 inserts a note after the subsection for the purpose of drawing attention to new provisions (Division 4 of Part XIIIAA inserted by item 25 of the Bill) relating to the jurisdiction of courts in international matters.
Item 20 - Section 69E
18. Item 20 inserts a note after subsection 69E of the Act consequentially upon item 25 of the Bill. Section 69E provides that proceedings may be instituted under the Act only if certain specified jurisdictional requirements are met. Item 20 inserts a note after the section for the purpose of drawing attention to new provisions (Division 4 of Part XIIIAA inserted by item 25 of the Bill) relating to the jurisdiction of courts in international matters.
Item 21 - Section 70H
19. Item 21 inserts a note after subsection 70H of the Act consequentially upon item 25 of the Bill. Section 70H provides that a registered overseas child order has effect as if it was an order by a court. Item 21 inserts a note after the section for the purpose of drawing attention to new provisions (Division 4 of Part XIIIAA inserted by item 25 of the Bill) which affect the jurisdiction of courts in international matters and relate to the effect of registration in Australia of a measure taken by a court or authority in another Convention country.
Items 22, 23 and 24 - Sections 110, 111A and 111B
20. Items 22, 23 and 24 divide existing provisions in the Act (sections 110, 111, 111A, 111B and 111C in Part XIIIAA) into new Divisions 1, 2 and 3 consequentially upon item 25 of the Bill. Item 25 creates a new Division 4 in Part XIIIAA to implement the Child Protection Convention. Items 22, 23 and 24 do not alter the operation of the existing provisions in the Act.
Item 25 - new Division 4 (International Protection of Children)
21. Item 25 creates a new Division 4 (International Protection of Children) in Part XIIIAA of the Act to implement the Child Protection Convention.
Subdivision A - Preliminary
22. Subdivision A provides new definition and application provisions (new sections 111CA and 111CB) for the purposes of new Division 4.
Section 111CA - Definitions
23. Subsection 111CA(1) defines certain words and expressions used in new Division 4.
24. The expression another country is defined, for the purposes of new subsections 111CR(3), 111CS(5), 111CS(6), and 111CV(1), as Convention country or a non Convention country. These expressions are defined in turn in subsection 111CA(1).
25. The word Australia is defined, for the purposes of new sections 111CD, 111CK, 111CR, 111CT, 111CV, 111CW, 111CY and 111CZ as including Australia’s external territories. This definition is required as the Convention will be ratified for the whole of Australia, including the external territories.
26. Central Authority and Commonwealth Central Authority are defined, for the purposes of new provisions 111CC, 111CG, 111CH, 111CJ, 111CN, 111CO, 111CU and 111CY. The Convention provides for authorities to be designated in each Convention country as central authorities in order to facilitate international communication and co-operation between courts and other competent authorities under the Convention.
27. The expression Child Protection Convention is defined, for the purpose of Division 4 of Part XIIIAA, as 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. The text of the Convention is set out in Schedule 1 to the Act, inserted by item 26 of the Bill.
28. Commonwealth personal protection measure is defined for the purposes of new subdivision B (sections 111CC to 111CI). Subdivision B implements provisions of the Convention which regulate the grounds of jurisdiction which courts and other competent authorities may exercise in taking measures for the protection of the person of a child (as distinct from measures for the protection of the property of the child dealt with in subdivision C). Under article 3 of the Convention, a ‘measure’ includes court orders or registered agreements in relation to matters such as child custody, residence, contact, or guardianship. Under article 4 of the Convention, a measure does not include court orders or agreements relating to matters such as adoption or child support (as these subjects are dealt with in international agreements apart from the Child Protection Convention).
29. Commonwealth property protection measure is defined for the purposes of new subdivision C (sections 111CJ to 111CP). Subdivision C implements provisions of the Convention which regulate the grounds of jurisdiction which courts and other competent authorities may exercise in taking measures for the protection of the property of a child (as distinct from measures for the protection of the person of the child dealt with in subdivision B). Under the Convention, a measure for the protection of the property of a child is limited to a measure taken by a court or competent authority in a Convention country for appointing, or deciding the powers of, a guardian of the child's property (see paragraph 67 below).
30. The expression competent authority is defined for the purposes of new Division 4 of Part XIIIAA. A competent authority may be a court, child protection agency, public guardian, public trustee, guardianship board or other person or body which has authority under the law of a country to take measures of protection for the person or property of a child.
31. The expression Convention country is defined for the purposes of new Division 4 of Part XIIIAA. A country becomes a party to the Child Protection Convention by lodging with the depositary of the Convention an instrument of ratification or accession in accordance with articles 57 or 58 of the Convention. A list of Convention countries will be included in regulations to be made under new paragraph 111CZ(2)(c).
32. The expression country of refuge is defined for the purposes of new provisions 111CD(1) and 111CK(1) which, among other things, implement article 6 of the Convention which deals with the jurisdiction of courts and other competent authorities to take measures of protection for children who are refugees.
33. The word entity is defined for the purposes of the definition of competent authority in section 111CA(1).
34. The expression foreign measure is defined (for the purposes of new sections 111CD(2), 111CK(2) and 111CT) as a foreign personal protection measure or a foreign property protection measure. These expressions are defined in turn in new subsection 111CA(1).
35. Foreign personal protection measure is defined for the purpose of new section 111CI.
36. Foreign property protection measure is defined for the purpose of new section 111CP.
37. The expression non-Convention country is defined for the purposes of new provisions 111CC, 111CD(1)(e), 111CD(1)(f), 111CI(3), 111CJ, 111CK(1)(d), 111CK(1)(e), 111CP(3) and 111CS(6).
38. The expression parental responsibility is defined for the purposes of new provisions relating to the jurisdiction of courts hearing divorce proceedings (subsections 111CD(2), 111CF(3), 111CK(3), 111CI(2), 111CM(3) and 111CP(2)) and the law applicable in determining who has parental responsibility for a child (section 111CS). Article 1.2 of the Child Protection Convention provides that parental responsibility includes parental authority, or any analogous relationship of authority determining the rights, powers and responsibilities of parents, guardians or other legal representatives in relation to the person or the property of a child.
39. The expression refugee child is defined for the purposes of new provisions 111CD(1) and 111CK(1) which, among other things, implement article 6 of the Convention which deals with the jurisdiction of courts and other competent authorities to take measures of protection for children who are refugees.
40. Subsection 111CA(2) provides that, unless the contrary intention appears, expressions used in new Division 4 or in the regulations made under new section 111CZ have the same meaning as they have in the Child Protection Convention. Thus the meaning of words used in the Child Protection Convention is relevant in determining the meaning of words such as ‘child’ (article 2), ‘measure’ (articles 3 and 4), ‘habitual residence’ (articles 5 and 7), ‘urgency’ (article 11) and ‘public policy’ (article 23.2(d)).
Section 111CB - Relationship between this Division and other provisions
41. Subsection 111CB(1) provides that Division 4 has effect despite any other provision in the Act. In order to ratify the Convention, Australian law must be adjusted so that the conflicts of law rules currently applied by courts under the Act conform to the provisions set out in the Child Protection Convention. Thus the effect of subsection 111CB(1) is that, to the extent of any inconsistency, the provisions in Division 4 prevail over provisions elsewhere in the Act such as subsection 31(2) (jurisdiction of the Family Court in relation to persons and things outside Australia), section 63E (registration of parenting plans), section 65D (making of parenting orders), section 67ZC (making of child welfare orders) and section 69E (child or parent to be present in Australia).
42. Section 69ZK of the Act provides that neither the Act nor any order under the Act affects the jurisdiction or orders of a State and Territory court under a child welfare law. Thus in the event of a conflict between a child protection order made under a State child welfare law and a parenting order made under the Act, the former prevails. If a child protection order made under a State child welfare law conflicts with a foreign parenting order registered under regulations made pursuant to new section 111CT of the Act, the former will prevail. Thus subsection 111CB(2) provides that Division 4 of Part XIIIAA (including section 111CT) is subject to section 69ZK. However if a child protection order made under a State child welfare law conflicts with a foreign child protection order registered under regulations made pursuant to new section 111CZ of the Act, the conflict must be resolved in accordance with the rules in the Convention on recognition and enforcement of orders. Thus subsection 111CB(3) provides that section 111CZ, and regulations made under that section, have effect despite section 69ZK.
43. Section 111B, and regulations made for the purposes of section 111B, implement the Hague Convention on Child Abduction 1980. Article 50 of the Child Protection Convention states in effect that in the event of a conflict the Child Abduction Convention prevails. Thus subsection 111CB(2) provides that Division 4 of Part XIIIAA is subject to section 111B and regulations made for the purposes of section 111B.
Subdivision B - Jurisdiction for the person of a child
44. Subdivision B implements articles 5 to 14 of the Child Protection Convention in relation to the jurisdiction of courts and other competent authorities to take measures directed to the protection of the person of a child. In implementing those articles, subdivision B takes the approach of dealing with the various grounds of jurisdiction, referred to in articles 5 to 14 of the Convention, according to the distinction traditionally applied by Australian courts between children present in Australia and children present in other countries.
Section 111CC - Application of this Subdivision
45. Section 111CC provides in effect that the rules of jurisdiction in subdivision B apply only in the event of a conflict in jurisdiction between a court in Australia and a competent authority in another country. This provision implements the preamble to the Child Protection Convention (which makes clear that the Convention is directed to the protection of children in international situations) and article 46 of the Convention which provides that a convention country is not obliged to apply the provisions of the Convention to conflicts solely between different systems of law in that country. Thus neither the Convention nor Subdivision B applies to conflicts in jurisdiction solely between a Commonwealth authority and a State authority, or conflicts in jurisdiction solely between authorities of different States in Australia.
Section 111CD - Jurisdiction relating to the person of a child
46. Subsection 111CD(1) implements articles 5 to 14 of the Child Protection Convention in relation to the jurisdiction of courts to take a Commonwealth personal protection measure for a child. The subsection takes the approach of dealing with the various grounds of jurisdiction referred to in articles 5 to 14 according to the distinction traditionally applied by Australian courts, between children present in Australia and children present in other countries. Thus a court may take a Commonwealth personal protection measure for a child in relation to:
(a) a child who is present and habitually resident in Australia (article 5); or
(b) a child who is present in Australia and habitually resident in a Convention country, if:
• the child's protection requires taking the measure as a matter of urgency (article 11); or
• the measure is provisional and limited in its territorial effect to Australia (article 12); or
• the child is a refugee child (article 6); or
• a request to assume jurisdiction is made to the court by, or at the invitation of, a competent authority in the country of the child's habitual residence (article 8); or
• a competent authority in the country of the child's habitual residence agrees to the court assuming jurisdiction (article 9); or
• the court is exercising jurisdiction in proceedings concerning the divorce or separation of the child's parents or the annulment of their marriage (article 10); or
(c) a child who is present in a Convention country, if:
• the child is habitually resident in Australia (article 5); or
• the child has been wrongfully removed from or retained outside Australia and the court keeps jurisdiction under Article 7 of the Child Protection Convention (article 7); or
• a request to assume jurisdiction is made to the court by, or at the invitation of, a competent authority in the country of the child's habitual residence or country of refuge (article 8); or
• a competent authority in the country of the child's habitual residence or country of refuge agrees to the court assuming jurisdiction (article 9); or
• 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 (article 10); or
(d) a child who is present in Australia and is a refugee child (article 6).
47. For the avoidance of doubt, paragraphs 111CC(1)(d) and (e) also preserve the jurisdiction of courts under the Act to take measures for the protection of the person of a child:
(e) who is present in a non-Convention country but habitually resident in Australia; or
(f) who is present in Australia but habitually resident in a non-Convention country.
At present the Act (paragraphs 69E(1)(b) to (e)) provides that the court has jurisdiction in relation to such children in specified circumstances (such as the child being an Australian citizen). Thus new subdivision B of Division 4 is a comprehensive statement of the grounds of jurisdiction of courts to take measures of protection for the person of a child.
48. Subsection 111CD(2) supplements paragraphs 111CD(1)(b)(ii) in its implementation of article 12 of the Child Protection Convention in relation to the jurisdiction of a court to take a provisional measure for the protection of a child.
49. Subsection 111CD(3) supplements paragraphs 111CD(1)(b)(vi) and 111CD(1)(c)(v) in their implementation of article 10 of the Child Protection Convention in relation to the jurisdiction of a court hearing divorce proceedings to take a Commonwealth personal protection measure for a child.
50. Subsection 111CD(4) makes clear that the grounds of jurisdiction set out in paragraphs 111CD(1)(a) to (d) are subject to the limitations in new sections 111CE, 111CF and 111CH.
Section 111CE - Limitation when a child is wrongfully removed from or retained outside a Convention country
51. Section 111CE implements article 7 of the Child Protection Convention which provides that the authorities of the country of the habitual residence of a child retain their jurisdiction to take measures of protection for the child unless and until certain conditions are met. (Thus, for example, if a child is removed from a Convention country by one parent in breach of the rights of custody of the other parent, courts in that country would retain jurisdiction to make parenting orders in relation to the child unless and until the conditions in article 7 are met).
Section 111CF - Limitations when prior proceedings pending in a Convention country
52. Subsection 111CF(2) implements article 13 of the Child Protection Convention which in effect provides that a court in a Convention country must not exercise jurisdiction to take measures of protection for a child if, at the time of the commencement of proceedings in the court, a court in another Convention country is exercising specified jurisdiction in accordance with the Convention.
53. Subsection 111CF(1) limits subsection 111CF(2) to certain grounds of jurisdiction because the prohibition on concurrent proceedings in article 13 does not apply to proceedings for urgent measures under article 11 (new paragraph 111CD(1)(b)(i)), for provisional measures under article 12 (new paragraph 111CD(1)(b)(ii)) or where the competing proceedings are in a court in a non-Convention country (new paragraphs 111CD(1)(e) or 111CD(1)(f)).
54. Subsection 111CF(3) supplements paragraph 111CF(2)(v) in its implementation of article 10 of the Child Protection Convention in relation to the jurisdiction of a court in a Convention country hearing divorce proceedings to take a measure for the protection of a child.
55. Subsection 111CF(4) implements article 13.2 of the Convention by making clear that the prohibition on concurrent proceedings in subsection 111CF(2) does not apply if the court in the other Convention country has declined jurisdiction or is no longer considering taking a measure of protection.
Section 111CG - If a court is asked to assume jurisdiction
56. Subsection 111CG(1) assists in implementing article 8 of the Child Protection Convention by providing that a court may accept or reject a request by an authority in another Convention country that the court exercise jurisdiction in a particular case.
57. Subsection 111CG(2) assists in implementing article 9 of the Child Protection Convention by providing that a court may request authorities in another Convention country to agree to the court exercising jurisdiction in a particular case. Consistently with article 9.3, new paragraphs 111CD(1)(b)(v) and 111CD(1)(c)(iv) provide that the court may exercise jurisdiction only if the authorities in the country of the child’s habitual residence or country of refuge agree to the request.
Section 111CH - Limitation if a competent authority of a Convention country is asked to assume jurisdiction
58. Subsection 111CH(1) assists in implementing article 8 of the Child Protection Convention by providing that a court may request a court or other authority in another Convention country to exercise jurisdiction in a particular case.
59. Subsection 111CH(2) provides that a court may make any other order for the purposes of an order under subsection 111CH(1). Thus, consistently with article 8.1 of the Convention, a court might make an order suspending the proceedings before the court pending a decision by the overseas court on the request to the transfer of jurisdiction.
60. Subsection 111CH(3) implements article 8 by providing that a request under section 111CH(1) can be made only if the court considers the overseas court is better placed to assess the child’s best interests.
61. Subsection 111CH(4) assists in implementing article 9 of the Child Protection Convention by providing that a court may accept or reject a request by an authority in another Convention country to agree to the authority exercising jurisdiction in a particular case.
62. Subsection 111CH(5) implements article 13 of the Child Protection Convention by providing that the Australian court must not exercise jurisdiction to take measures of protection for a child if a court in the other Convention country is exercising jurisdiction under the Convention. Consistently with article 13, subsection 111CH(4) does not prevent the Australian court taking urgent measures (in accordance with new paragraph 111CD(1)(b)(i)) or provisional measures (in accordance with new paragraph 111CD(1)(b)(ii)) for the protection of the child.
Section 111CI - When a certain Commonwealth personal protection measure lapses
63. Subsection 111CI(1) implements articles 11.2 and 12.2 of the Child Protection Convention by providing that an urgent measure for a child in accordance with new paragraph 111CD(1)(b)(i) (article 11.1), or a provisional measure for a child in accordance with new paragraph 111CD(1)(b)(ii) (article 12.1), ceases to operate if a competent authority in another Convention country takes a measure directed to the protection of the person of the child. Consistently with articles 11.2 and 12.2, subsection 111CI(1) only applies if the competent authority in the other Convention country is exercising jurisdiction in accordance with article 5 (new paragraph 111CI(1)(b)(i)), article 6 (new paragraph 111CI(1)(b)(ii)), article 8 (new paragraph 111CI(1)(b)(iii)), article 9 (new paragraph 111CI(1)(b)(iv)), article 10 (new paragraph 111CI(1)(b)(v) and subsection 111CI(2)) or article 7 (new paragraph 111CI(1)(b)(vi)).
64. Subsection 111CI(3) implements articles 11.3 and 12.3 of the Child Protection Convention by providing that an urgent measure for a child in accordance with new paragraph 111CD(1)(b)(i) (article 11.1), or a provisional measure for a child in accordance with new paragraph 111CD(1)(b)(ii)) (article 12.1), ceases to operate if a competent authority in a non Convention country takes a measure directed to the protection of the person of the child and the measure is registered in Australia. Registration may be under existing section 70G of the Act (registration of overseas child orders) or under any registration procedure which may be available under a law enacted by an Australian State or Territory.
Subdivision C - Jurisdiction for decisions about a guardian of a child’s property
65. Subdivision C implements articles 5 to 14 of the Child Protection Convention in relation to the jurisdiction of courts and other competent authorities to take measures for appointing, or deciding the powers of, a guardian of a child's property. In implementing articles 5 to 14, subdivision C takes the approach of dealing with the various grounds of jurisdiction referred to in articles 5 to 14 according to the distinction traditionally applied by Australian authorities between children present in Australia and children present in other countries.
Section 111CJ - Application of this Subdivision
66. Section 111CJ provides in effect that the rules in subdivision C apply only in the event of a conflict in jurisdiction between a court in Australia and a competent authority in another country. This provision implements the preamble to the Child Protection Convention (which makes clear that the Convention is directed to the protection of children in international situations) and article 46 of the Convention which provides that a convention country is not obliged to apply the provisions of the Convention to conflicts solely between different systems of law in that country. Thus neither the Convention nor Subdivision C applies to conflicts in jurisdiction solely between a Commonwealth and a State authority, or conflicts in jurisdiction solely between authorities of different States in Australia.
Section 111CK - Jurisdiction to appoint, or determine the powers of, a guardian for a child’s property
67. Subsection 111CK(1) implements articles 5 to 14 of the Child Protection Convention in relation to the jurisdiction of courts to take a Commonwealth property protection measure for a child. The drafters of the Convention included these articles in recognition of the utility of having precise rules concerning the designation and the powers of the child's legal representative to administer the child's property located in a foreign State, in particular where it is necessary to carry out the settlement of an estate which has passed to the child. The drafters of the Convention did not intend to go beyond the appointment or determination of the powers of a guardian of a child’s property. Thus, for example, the Convention does not alter traditional private international law rules on the lack of jurisdiction of a court to determine ownership of interests in foreign land or other property.
68. Section 61C(l) of the Act provides that each of the parents of a child has parental responsibility for the child, subject to any court order to the contrary. Parental responsibility includes the common law power of a parent, as guardian, to administer a child's property. Under subsection 111CK(1), a court may exercise its jurisdiction under the Act to create, alter or remove the property guardianship powers of a person in relation to:
(a) a child who is present and habitually resident in Australia (article 5); or
(b) a child who is habitually resident in a Convention country, if:
• the protection of the child’s property requires taking the measure as a matter of urgency (article 11); or
• the measure is provisional and limited in its territorial effect to Australia (article 12); or
• a request to assume jurisdiction is made to the court by, or at the invitation of, a competent authority in the country of the child's habitual residence or country of refuge (article 8); or
• a competent authority in the country of the child's habitual residence or country of refuge agrees to the court assuming jurisdiction (article 9); or
• the child has been wrongfully removed from or retained outside Australia and the court keeps jurisdiction under Article 7 of the Child Protection Convention (article 7); or
• the court is exercising jurisdiction in proceedings concerning the divorce or separation of the child's parents or the annulment of their marriage (article 10); or
(c) a child who is present in Australia and is a refugee child (article 6).
69. For the avoidance of doubt, subsection 111CK(1) also preserves the jurisdiction of courts under the Act to appoint or determine the powers of guardian of the property of a child:
(d) who is present in a non-Convention country but habitually resident in Australia; or
(e) who is present in Australia but habitually resident in a non-Convention country.
At present the Act (paragraphs 69E(1)(b) to (e)) provides that the court has jurisdiction in relation to such children in specified circumstances (such as the child being an Australian citizen). Thus new subdivision C of Division 4 is a comprehensive statement of the grounds of jurisdiction of courts to take measures appointing, or determining the powers, of a guardian of the property of a child.
70. Subsection 111CK(2) supplements paragraphs 111CK(1)(b)(ii) in its implementation of article 12 of the Child Protection Convention in relation to the jurisdiction of a court to take a provisional property protection measure for a child.
71. Subsection 111CK(3) supplements paragraphs 111CK(1)(b)(vi) in its implementation of article 10 of the Child Protection Convention in relation to the jurisdiction of a court hearing divorce proceedings to take a Commonwealth property protection measure for a child.
72. Subsection 111CK(4) makes clear that the grounds of jurisdiction set out in sub-section 111CK(1)(a) to (c) are subject to the limitations in new sections 111CL, 111CM and 111CO.
Section 111CL - Limitation when a child is wrongfully removed from or retained outside a Convention country
73. Section 111CL implements article 7 of the Child Protection Convention which provides that the authorities of the country of the habitual residence of a child retain their jurisdiction to take measures of protection for the child unless and until certain conditions are met. Thus, for example, if a child is removed from a Convention country by one parent in breach of the rights of custody of the other parent, the courts of that country would retain jurisdiction in relation to the property of a child unless and until the conditions in article 7 are met.
Section 111CM - Limitations when prior proceedings pending in a Convention country
74. Subsection 111CM(2) implements article 13 of the Child Protection Convention which in effect provides that a court in a Convention country must not exercise jurisdiction to take property protection measures for a child if, at the time of the commencement of proceedings in the court, a court in another Convention country is exercising specified jurisdiction in accordance with the Convention.
75. Subsection 111CM(1) limits subsection 111CM(2) to certain grounds of jurisdiction because the prohibition on concurrent proceedings in article 13 does not apply to proceedings for urgent measures in accordance with article 11 (new paragraph 111CK(1)(b)(i)), for provisional measures in accordance with article 12 (new paragraph 111CK(1)(b)(ii)) or where the competing proceedings are in a court in a non-Convention country (new paragraphs 111CK(1)(d) or 111CK(1)(e)).
76. Subsection 111CM(3) supplements paragraph 111CM(2)(b)(v) in its implementation of article 10 of the Child Protection Convention in relation to the jurisdiction of a court in a Convention country hearing divorce proceedings to take a measure for the protection of a child.
77. Subsection 111CM(4) implements article 13.2 of the Convention by making clear that the prohibition on concurrent proceedings in subsection 111CM(2) does not apply if the court in the other Convention country has declined jurisdiction or is no longer considering taking a measure of protection.
Section 111CN - If a court is asked to assume jurisdiction
78. Subsection 111CN(1) assists in implementing article 8 of the Child Protection Convention by providing that a court may accept or reject a request by an authority in another Convention country that the court exercise jurisdiction in a particular case.
79. Subsection 111CN(2) assists in implementing article 9 of the Child Protection Convention by providing that a court may request authorities in another Convention country to agree to the court exercising jurisdiction in a particular case. Consistently with article 9.3, new paragraph 111CK(1)(b)(iv) provides that the court may exercise jurisdiction only if the authorities in the country of the child’s habitual residence agree to the request.
80. Subsection 111CN(3) implements article 9 by providing that a request under section 111CN(2) can be made only if the court considers it is better placed to assess the child’s best interests.
Section 111CO - Limitation if a competent authority of a Convention country is asked to assume jurisdiction
81. Subsection 111CO(1) assists in implementing article 8 of the Child Protection Convention by providing that a court may request a court or other authority in another Convention country to exercise jurisdiction in a particular case.
82. Subsection 111CO(2) provides that a court may make any other order for the purposes of an order under subsection 111CO(1). Thus, consistently with article 8.1 of the Convention, a court might make an order suspending the proceedings before the court pending a decision by the overseas court on the request for transfer of jurisdiction.
83. Subsection 111CO(3) implements article 8 by providing that a request under section 111CO(1) can be made only if the court considers the overseas authority is better placed to assess the child’s best interests.
84. Subsection 111CO(4) assists in implementing article 9 of the Child Protection Convention by providing that a court may accept or reject a request by an authority in another Convention country to agree to the authority exercising jurisdiction in a particular case.
85. Subsection 111CO(5) implements article 13 of the Child Protection Convention by providing that the Australian court must not exercise jurisdiction to take measures of protection for a child if the court in the other Convention country is exercising jurisdiction under the Convention. Consistently with article 13, subsection 111CO(5) does not prevent the Australian court taking urgent measures (in accordance with new paragraph 111CK(1)(b)(i)) or provisional measures (in accordance with new paragraph 111CK(1)(b)(ii)) for the protection of the child.
Section 111CP - When a certain Commonwealth property protection measure lapses
86. Subsection 111CP(1) implements articles 11.2 and 12.2 of the Child Protection Convention by providing that an urgent measure for a child in accordance with new paragraph 111CK(1)(b)(i) (article 11.1), or a provisional measure for a child in accordance with new paragraph 111CK(1)(b)(ii)) (article 12.1), ceases to operate if a competent authority in another Convention country takes a measure directed to the protection of the person of the child. Consistently with articles 11.2 and 12.2, subsection 111CP(1) only applies if the competent authority in the other Convention country is exercising jurisdiction in accordance with article 5 (new paragraph 111CP(1)(b)(i)), article 6 (new paragraph 111CP(1)(b)(ii)), article 8 (new paragraph 111CP(1)(b)(iii)), article 9 (new paragraph 111CP(1)(b)(iv)), article 10 (new paragraph 111CP(1)(b)(v) and subsection 111CP(2)) or article 7 (new paragraph 111CP(1)(b)(vi)).
87. Subsection 111CP(3) implements articles 11.3 and 12.3 of the Child Protection Convention by providing that an urgent measure for a child in accordance with new paragraph 111CK(1)(b)(i) (article 11.1), or a provisional measure for a child in accordance with new paragraph 111CK(1)(b)(ii)) (article 12.1), ceases to operate if a competent authority in a non Convention country takes a measure directed to the protection of the person of the child and the measure is registered in Australia. Registration may be under existing section 70G of the Act (registration of overseas child orders) or under any registration procedure which may be available under a law enacted by an Australian State or Territory.
Subdivision D - Applicable law
88. Subdivision D implements articles in chapter III of the Convention relating to the determination of the law applicable to parental responsibility.
Section 111CQ - Meaning of law
89. Section 111CQ implements article 21.1 of the Child Protection Convention by providing that a reference to the word law in Subdivision D does not include choice of law rules.
Section 111CR - Applicable law generally
90. Section 111CR implements article 15 of the Child Protection Convention by providing that a court must apply Commonwealth law when exercising jurisdiction to take a measure of protection for a child in accordance with subdivision B (measures for the protection of the person of a child) or subdivision C (measures for appointing, or determining the powers of, a guardian for a child’s property). However, consistently with article 15.2, in exceptional circumstances a court may apply the law of another country if the protection of the child makes this necessary. New section 111CR will complement existing section 42(2) of the Act.
Section 111CS - Applicable law concerning parental responsibility
91. Subsection 111CS(2) implements article 16.1 of the Child Protection Convention by providing that the law that applies in the country of a child’s habitual residence governs the circumstances in which parental responsibility is attributed or extinguished by operation of law. Thus, for example, the effect of existing section 61C of the Act is that each parent of a child has parental responsibility for the child without the need of a court order. Under the Convention, an unmarried Australian father’s parental responsibility for a child will be recognised in another Convention country even if, under the law of that country, the father would not usually be recognised as having rights or responsibilities in relation to his ex nuptial child.
92. Subsection 111CS(3) implements article 16.2 of the Child Protection Convention by providing that the law that applies in the country of a child’s habitual residence governs the circumstances in which parental responsibility is attributed or extinguished by an agreement or unilateral Act. Thus, for example, the effect of existing section 63F of the Act is that the registration by a court of a parenting plan may have the same effect as an order by a court in altering parental responsibility. Under the Convention, the registration of a parenting plan under the Act would be recognised in other Convention countries as altering parental responsibility.
93. Subsection 111CS(4) implements article 17 of the Child Protection Convention by providing that the law that applies in the country of a child’s habitual residence governs the exercise of parental responsibility.
94. Subsection 111CS(5) implements articles 16.3, 16.4 and 17 of the Child Protection Convention by providing for situations in which the habitual residence of a child changes.
95. Subsection 111CS(6) implements article 21.2 of the Child Protection Convention by providing an exception in relation to the law applicable to a child who is habitually resident in a non Convention country.
96. Subsection 111CS(7) implements article 18 of the Child Protection Convention by providing that parental responsibility attributed under new section 111CS may be altered by measures taken by a court in accordance with new sections 111CD or 111CK.
97. Subsection 111CS(8) implements article 22 of the Child Protection Convention by providing that a court may refuse to apply section 111CS where to do so would be contrary to public policy having regard to the best interests of the child.
Subdivision E - Recognition of foreign measures
98. Subdivision E implements articles in chapter IV of the Child Protection Convention relating to the recognition and enforcement of measures. Consistently with articles 23 to 28 of the Child Protection Convention, regulations made under new section 111CZ will regulate the conditions for registration of foreign measures and provide for transmission of Australian measures (including parenting orders and registered parenting agreements) to other Convention countries for registration and enforcement. Subdivision E is similar in effect to existing provisions (sections 70F to 70L of the Act and the Family Law Regulations) relating to the effect of foreign measures from non Convention countries registered in Australia.
Section 111CT - Effect of registered foreign measures
99. Section 111CT implements articles 14, 23.1 and 26.1 of the Convention by providing in effect that a registered foreign measure operates as if it were a court order made under the Act and prevails over any prior inconsistent measure in force under the Act.
Subdivision F - Co-operation
100. Subdivision F implements articles in chapter V of the Child Protection Convention relating to co-operation between authorities in Convention countries.
Section 111CU - Obligation to obtain consent to place child
101. Section 111CU implements article 33.2 of the Convention by requiring a court to obtain, with the assistance of the Commonwealth Central Authority, the consent of a competent authority in another Convention country before placing a child in foster care or institutional care in that country.
Section 111CV - Obligation to inform competent authority about serious danger to a child
102. Sub-section 111CV(1) implements article 36 of the Child Protection Convention. Article 36 applies where authorities in one country take measures to protect a child and the child is moved to another country (for example moved by the child’s parents). If the child is exposed to serious danger (for example, danger of abuse or neglect by the parents), the Convention obliges authorities in the first country to inform authorities in the second country about the danger. In practice it would then be a matter for authorities in the second country to consider taking measures of protection for the child in accordance with the jurisdiction provisions of the Convention.
103. Sub-sections 111CV(2) to (5) provide protection for persons making disclosures of information under sub-section 111CV(1). This protection is similar to the protection currently provided in the Act (section 67ZB) for disclosures of child abuse information to State/Territory child protection authorities.
Section 111CW - court proceedings for contact
104. Section 111CW implements article 35 of the Child Protection Convention by providing for a court to co-operate with courts in other Convention countries to resolve disputes over contact by a parent with his or her child.
105. Section 111CW(1) implements article 35.2 by requiring a court to admit into evidence and consider a finding by a competent authority in another Convention country on the suitability of a parent to have contact with a child.
106. Section 111CW(2) implements article 35.3 by giving a discretion to a court to adjourn proceedings pending the outcome of a request to authorities in another Convention country for a finding on the suitability of a parent to have contact with his or her child.
107. Section 111CW(3) implements article 35.2 by providing for a court to make a finding on the suitability of a parent to have contact with his or her child.
Section 111CX - Jurisdiction for a location order or a Commonwealth information order
108. Section 111CX assists in implementing article 31c of the Child Protection Convention relating to assisting overseas authorities in the location of, and implementation of measures of protection for, children. Section 111CX complements amendments made to the Act made by items 14 to 18 in the Bill.
Section 111CY - Giving information to central authorities and competent authorities in Convention countries
109. Section 111CY implements articles of the Child Protection Convention relating to the disclosure of information.
110. The Child Protection Convention includes provisions which require the communication of information between authorities in Convention countries (articles 8, 9, 30, 32, 33, 34 and 35). Subsection 111CY(2) provides that courts and authorities in Australia may give information to authorities in other Convention countries. Subsection 111CY(2) also applies to the communication of information between Australian authorities because such communication may be necessary in channelling, or co-ordinating the gathering, of information for transmission to other Convention countries. Sub-section 111CY(2) is limited to communications necessary to comply with the Child Protection Convention or Division 4 (which implements the Child Protection Convention).
Subdivision G - Regulations
Section 111CZ - Regulations to implement the Convention
111. Subsection 111CZ(1) provides that regulations under the Act may make such provision as is necessary or convenient to implement the Child Protection Convention in Australia.
112. Subsection 111CZ(2) provides that regulations under the Act may provide that the regulations do not affect the operation of State or Territory laws implementing the Convention (for example a law which may be enacted by a State and Territory to implement the Convention in relation to measures to protect children from abuse or neglect). Subsection 111CZ(2) also provides that the regulations may provide that specified provisions of the Convention have the force of law in Australia - this approach has been followed in implementing another Hague Convention in the Trusts (Hague Convention) Act 1991. Consistently with regulations implementing other Hague Conventions, the regulations may also include a list of Convention countries (for the information of members of the public).
113. Consistently with existing provisions in the Act implementing other Hague Conventions (existing subsections 111C(5) and 124A(2) of the Act), subsection 111CZ(3) provides that the regulations may confer jurisdiction on, or invest jurisdiction in, courts.
114. Consistently with an existing provision in the Act implementing another Hague Convention (existing subsection 111C(6)), subsection 111CZ(4) provides that the regulations may make different provision in respect of matters arising in relation to different States.
Division 5 - Other matters
115. Consequentially upon items 22, 23 and 24 of the Bill, item 25 inserts a new heading ‘Division 5-Other matters’ to appear before existing section 111D (rules of evidence) in Part XIIIAA of the Act. The new heading does not alter the operation of existing section 111D.
Item 26 Schedule 1
116. Item 26 inserts a new section Schedule 1 at the end of the Act setting out the full text of the Child Protection Convention.