AUSTRALIA'S FAMILY LAW ACT
Sec.111B Convention on the Civil Aspects of International Child Abduction (1)
The regulations may make such provision as is necessary or convenient
to enable the performance of the obligations of Australia, or to obtain
for Australia any advantage or benefit, under the Convention on the
Civil Aspects of International Child Abduction signed at The Hague on
25 October 1980 (the Convention) but any such regulations shall not
come into operation until the day on which that Convention enters into
force for Australia. (1A) In relation to proceedings under regulations made for the purposes of subsection (1), the regulations may make provision: (a) relating to the onus of establishing that a child should not be returned under the Convention; and (b) establishing rebuttable presumptions in favour of returning a child under the Convention; and (c)
relating to a Central Authority within the meaning of the regulations
applying on behalf of another person for a parenting order that deals
with the person or persons with whom a child is to spend time or
communicate if the outcome of the proceedings is that the child is not
to be returned under the Convention. (1B)
The regulations made for the purposes of this section must not allow an
objection by a child to return under the Convention to be taken into
account in proceedings unless the objection imports a strength of
feeling beyond the mere expression of a preference or of ordinary
wishes. (1C)
A Central Authority within the meaning of the regulations may arrange
to place a child, who has been returned to Australia under the
Convention, with an appropriate person, institution or other body to
secure the child’s welfare until a court exercising jurisdiction under
this Act makes an order (including an interim order) for the child’s
care, welfare or development. (1D) A Central Authority may do so despite any orders made by a court before the child’s return to Australia. (1E)
Any regulations made for the purposes of this section to give effect to
Article 21 (rights of access) of the Convention may have effect
regardless of: (a)
whether an order or determination (however described) has been made
under a law in force in another Convention country (within the meaning
of the regulations made for the purposes of this section), with respect
to rights of access to the child concerned; or (b) if the child was removed to Australia—when that happened; or (c) whether the child has been wrongfully removed to, or retained in, Australia. (2) Because of amendments of this Act made by the Family Law Reform Act 1995: (a) a parent or guardian of a child is no longer expressly stated to have custody of the child; and (b)
a court can no longer make an order under this Act expressed in terms
of granting a person custody of, or access to, a child. (3)
The purpose of subsection (4) is to resolve doubts about the
implications of these changes for the Convention. That is the only
purpose of the subsection. (4) For the purposes of the Convention: (a)
each of the parents of a child should be regarded as having rights of
custody in respect of the child unless the parent has no parental
responsibility for the child because of any order of a court for the
time being in force; and (b) subject to any order of a court for the time being in force, a person: (i) with whom a child is to live under a parenting order; or (ii) who has parental responsibility for a child under a parenting order; should be regarded as having rights of custody in respect of the child; and (c)
subject to any order of a court for the time being in force, a person
who has parental responsibility for a child because of the operation of
this Act or another Australian law and is responsible for the
day‑to‑day or long‑term care, welfare and development of the child
should be regarded as having rights of custody in respect of the child;
and (d) subject to any order of a court for the time being in force, a person: (i) with whom a child is to spend time under a parenting order; or (ii) with whom a child is to communicate under a parenting order; should be regarded as having a right of access to the child. (5)
Subsection (4) is not intended to be a complete statement of the
circumstances in which, under the laws of the Commonwealth, the States
and the Territories, a person has, for the purposes of the Convention,
custody of, or access to, a child, or a right or rights of custody or
access in relation to a child. (5A) Subsections (1A) and (2) to (5) do not, by implication, limit subsection (1). (6) Expressions used in this section have the same meaning as they have in Part VII.
