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Thursday, 20 September 2001
Page: 31082


Mr WILLIAMS (Attorney-General) (9:48 AM) —I move:

That the bill be now read a second time.

The Family Law Amendment (Child Protection Convention) Bill 2001 will amend the Family Law Act to enable Australia to ratify the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children 1996.

Ratification of the convention would be of significant benefit to Australian families and in particular to children who are the subject of international family law or child protection litigation. While the consistent theme in the government's reform agenda in family law has been to shift the focus away from litigation as the most appropriate choice for the resolution of family law disputes, it remains a fact that litigation is the final resort for a minority of parents. In these cases, jurisdictional certainty and finality of court orders are important and will be aided by Australia becoming a party to the convention.

Existing family law litigation across international boundaries is subject to uncertainty as to jurisdiction and unpredictability in relation to the enforcement of orders abroad. The convention attempts to overcome these uncertainties by providing clear jurisdictional rules and by encouraging cooperation between authorities in different countries to protect the best interests of children affected by disputes over parental responsibility.

The complexity of international litigation necessarily leads to complex conflicts of law rules. In examining the provisions of the bill, it is important to keep in mind that Australian courts and authorities already apply highly technical conflict of law rules, most of which have been developed piecemeal over time by the courts as part of the common law. The convention is largely consistent with those existing rules but has the advantage of codifying the rules in a form which is expected to be adopted in many countries. The convention was drafted by family law experts from 48 countries under the auspices of the Hague Conference on Private International Law, the foremost international organisation in development of modern conflict of laws instruments in the family law area.

International jurisdiction

The bill lays down detailed rules for resolving family law conflicts in jurisdiction between Australian courts and courts in other countries. Conflict in jurisdiction between Australian courts and overseas courts in children's matters has been a longstanding area of difficulty. The Hague Convention on International Child Abduction has been successful in resolving some of these cases. But uncertainties remain in many cases outside the reach of that convention, resulting in Australian and overseas courts making conflicting parenting orders in relation to the same children. The jurisdictional rules laid down in the child protection convention are designed to remove uncertainty for parents and the courts in determining the appropriate forum to hear disputes as to parental responsibility.

The jurisdiction provisions of the convention centralise jurisdiction in the courts of the country where the child in question is habitually resident. The primacy given to habitual residence by the convention is a recognition that the authorities of the child's country of habitual residence are by definition closer to the child and usually better able to assess his or her situation. This is a view that has been approved by successive Australian governments, by courts in Australia and by other common law countries. The bill recognises some subsidiary grounds of jurisdiction, thus for example providing for Australian courts to take urgent measures to protect a child habitually resident overseas but temporarily present in Australia.

Applicable law

The applicable law provisions of the convention, which are implemented by the bill, will have significant practical benefits for unmarried fathers in Australia. The Family Law Act provides that each of the parents of a child has parental responsibility in relation to the child. However in other countries, like New Zealand and the United Kingdom, a father who is not married to the child's mother has no rights of custody by operation of law. At present an unmarried Australian father who wishes to assert his parental responsibility rights in those countries faces the cost and delay of litigating in foreign courts. Under the convention, the father's parental responsibility established by operation of the Family Law Act will be automatically recognised in other convention countries.

Recognition and enforcement abroad of parenting orders

In the absence of reciprocal recognition arrangements with other countries, it is open to a parent who leaves Australia to ignore family law orders made by the Australian courts and relitigate residence and contact issues in the other country to the disadvantage of the child and the other parent in Australia. Under the convention a parent will be able to send a parenting order made by an Australian court to another convention country for registration and enforcement. As the convention is expected to be ratified by many other countries, the range of countries in which Australian parenting orders will be enforceable in future should expand significantly. The bill provides for regulations to be made to give effect to the recognition and enforcement provisions of the convention.

International cooperation

In the interests of protecting the best interests of children, the convention also includes a range of procedures to encourage cooperation between courts and child protection authorities in different countries. The bill facilitates the implementation of these provisions of the convention by providing, for example, requirements:

· that Australian authorities notify overseas authorities of any information concerning serious danger of abuse to a child;

· that Australian authorities cooperate with overseas authorities in locating children whose whereabouts are unknown; and

· for Australian courts to cooperate with overseas courts in the resolution of cases where a parent in one country seeks contact with his or her children residing in another country.

Child protection

Another major objective of the convention is to address the problem of international cases involving protection of children from abuse and neglect. It is in the best interests of children that there be internationally agreed rules determining which child protection authorities have jurisdiction in relation to a child. The absence of agreed rules may mean that authorities in one country fail to act because they assume authorities in another country have taken responsibility for protecting a child.

In Australia, the law and policy in relation to the protection of children from abuse and neglect is the responsibility of state and territory governments. A representative of the states participated in the international negotiations on the convention. Subsequently consultation on the question of Australia's ratification of the convention has taken place through the Standing Committee of Attorneys-General and the Community Services Ministers Council. In 1999 responsible state and territory ministers agreed to Australia's ratification. Since that time, Commonwealth and state officials have been cooperating in the development of an appropriate legislative scheme to implement the convention in Australia. This bill would amend the Family Law Act to enable the Commonwealth to give effect to that scheme of legislation.

Summary

In accordance with reforms to the treaty making process introduced by this government, the convention will be tabled and subject to scrutiny by the Joint Standing Committee on Treaties. A copy of the bill will be provided to the committee to assist it in fully considering the implications of Australian ratification of the convention.

I present the explanatory memorandum to the bill.

Debate (on motion by Dr Lawrence) adjourned.