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Family Law Amendment Bill (No. 1) 1998

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1998

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

FAMILY LAW AMENDMENT BILL (No.1) 1998

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

(Circulated by authority of the Attorney-General,

the Honourable Daryl Williams AM QC MP)

 

 

 

 

 



FAMILY LAW AMENDMENT BILL (No.1) 1998

 

GENERAL OUTLINE

 

This Bill makes two changes to the Family Law Act 1975 in relation to intercountry adoption.

 

The Bill will enable regulations to be made to give effect to bi-lateral arrangements with other countries on intercountry adoption.  The objective is to provide for automatic recognition of adoption decisions made in countries which are prescribed in the regulations.  In negotiations with the government of the People’s Republic of China on a bi-lateral agreement on intercountry adoption, the Chinese representatives have insisted on an assurance that Australian law will recognise adoption decisions made under Chinese law.  The amendments proposed in this Bill will enable regulations to be made to give recognition in Australian law to adoption decisions made in the People’s Republic of China.  The negotiation of a bi-lateral agreement with China can then be finalised.

 

The Bill will enable regulations to be made to confer jurisdiction on Australian courts to make decisions on intercountry adoptions.  In developing arrangements for the implementation in Australia of the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption 1993, State and Territory Governments have proposed that decisions on applications for adoption should be made by certain State and Territory courts.  At present the provisions of the Family Law Act 1975 do not provide for jurisdiction to be conferred on all of these courts.  The amendments proposed in this Bill will enable regulations to be made to confer jurisdiction on the relevant courts.

 

FINANCIAL IMPACT STATEMENT

 

The amendments proposed in the Bill have no financial impact.



NOTES ON CLAUSES

 

PART 1 - PRELIMINARY

 

Clause 1 - Short title

1       This clause provides for the Act to be cited as the Family Law Amendment Act (No. 1) 1998.

Clause 2 - Commencement

2       Clause 2 provides that the Bill will commence on the day on which it receives  Royal Assent.

Clause 3 - Schedule

3       This clause sets out the effect of amendments to other Acts contained in the Schedule.  

 

Schedule 1 - Family Law Act 1975

4        Item 1 amends sub-section 39(5) of the Family Act consequential upon the enactment in Item 4 of a new sub-section 111C(5).  Among other things,        sub-section 39(5) confers jurisdiction on State and Federal courts with respect to matters arising under certain provisions of the Act, including  matters arising under section 111C relating to the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption.  As item 4 inserts a new sub-section 111C(5) in the Act, providing for conferral of jurisdiction on courts, the reference  in sub-section 39(5) to section 111C is unnecessary and is omitted.

5        Item 2 amends sub-section 40(8) of the Family Act consequential upon the enactment in Item 4 of a new sub-section 111C(5). Section 40 provides for proclamations to be made regulating the exercise of jurisdiction under the Act by courts.  As item 4 inserts a new sub-section 111C(5) in the Act, providing for regulations to be made regulating the exercise of jurisdiction by courts under section 111C, sub-section 40(8) is amended to make clear that proclamations under section 40 have no effect in relation to the exercise of jurisdiction by courts under section 111C.

6        Item 3 inserts a new section 96A in the Family Act consequential upon the enactment in Item 4 of a new sub-section 111C(5).  Part X of the Family Law Act makes provision for appeals from decisions of courts exercising jurisdiction under the Act.  As item 4 inserts a new sub-section 111C(5) in the Act, providing for regulations to be made regulating the exercise of jurisdiction by courts (including appeals) under section 111C, new section 96A is inserted to make clear that Part X has no effect in relation to appeals from decisions made under section 111C.

7       Item 4 inserts a new sub-section 111C(3) in the Family Law Act.  New sub-section 111C(3) will enable regulations to be made to give effect to any bi-lateral agreement or arrangement with an overseas jurisdiction on adoption of children.  The overseas jurisdiction, which may be a country or a province of another country, will be prescribed in the regulations to be made under new section 111C(3).

8       Item 4 also inserts a new sub-section 111C(4) in the Family Law Act.  Paragraph 111C(4)(a) makes clear that regulations made under new sub-section 111C(3) may provide for the recognition of adoptions made under the laws of other countries.  Paragraph 111C(4)(b) is inserted to make clear that regulations made under new sub-section 111C(3) may include a savings clause to preserve the operation of any State and Territory laws which give effect to agreements with overseas jurisdictions on adoption.  Paragraph 111C(4)(c) makes clear that regulations made under new sub-section 111C(3) may give effect to an agreement or arrangement with an overseas jurisdiction even if all States and Territories are not parties to that agreement or arrangement.

9       Item 4 also inserts a new sub-section 111C(5) in the Family Law Act.  New sub- 111C(5) will enable regulations to be made conferring or investing jurisdiction on State, Territory or Federal courts to make decisions on intercountry adoption matters arising under section 111C.

10     Item 4 also inserts a new sub-section 111C(6) in the Family Law Act.  New sub- 111C(6) makes clear that regulations made under new sub-section 111C(5) may provide for different courts in each State or Territory to exercise jurisdiction to make decisions on intercountry adoption matters arising under section 111C. New sub-section 111C(6) does not limit the operation of sub-section 33(3A) of the Acts Interpretation Act 1901 which in effect provides that a power in an Act to make regulations shall be construed as a power to make regulations with different provision with respect to different matters.

11     Item 4 also inserts a new sub-section 111C(7) in the Family Law Act.  New sub- 111C(7) makes clear that new sub-sections 111C(4), 111C(5) and 111C(6) do not limit the power conferred by existing sub-sections 111C(1) and (2) to make regulations implementing the  Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption.

12     Item  4 also inserts a new sub-section 111C(8) in the Family Law Act.  New sub- 111C(8) makes clear that the power in section 111C to make regulations relating to  intercountry adoption includes the power to make regulations relating to intercountry adoption in Australia’s external territories. External territory refers to the definition of external territory in section 17(pd) of the Acts Interpretation Act 1901, rather than the definition of external territory in section 4(1) of the Family Law Act 1975.