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Australia's Family Law Act

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.

Note: The references in paragraphs (b) and (d) to parenting orders also cover provisions of parenting agreements registered under section 63E (see section 63F, in particular subsection (3)).

(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.

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