Commonwealth Numbered Acts

Family Law Amendment Act 1983 No. 72 of 1983 - SECT 33

33. After section 70 of the Principal Act the following sections are inserted
in Part VII: Certain children not to be taken out of Australia

''70A. (1) Where there is in force an order (including an interim order) made
by a court in Australia with respect to the custody or guardianship of, or
access to, a child (including an ex-nuptial child), a person who was a party
to the proceedings in which the order was made, or a person who is acting on
behalf of, or at the request of, such a person, shall not take or send, or
attempt to take or send, the child from Australia to a place outside Australia
except-

   (a)  with the consent in writing (authenticated as prescribed) of each
        person who, under the order, is entitled (whether alone or together
        with another person or other persons) to the custody or guardianship
        of, or access to, the child; or

   (b)  in accordance with an order of a court made under this Act or under a
        law of a State or Territory at the time of, or after, the making of
        the first-mentioned order.

Penalty: $10,000 or imprisonment for 3 years, or both.

''(2) Where proceedings have been instituted in a court in Australia for an
order with respect to the custody or guardianship of, or access to, a child
(including an ex-nuptial child), and those proceedings are pending, a person
who is a party to the proceedings, or a person who is acting on behalf of, or
at the request of, such a person, shall not take or send, or attempt to take
or send, the child from Australia to a place outside Australia except-

   (a)  with the consent in writing (authenticated as prescribed) of each
        other party to the proceedings; or

   (b)  in accordance with an order of a court made under this Act or under a
        law of a State or Territory after the institution of the proceedings.

Penalty: $10,000 or imprisonment for 3 years, or both.

''(3) An offence against this section is an indictable offence.

''(4) Notwithstanding that an offence referred to in sub-section (3) is an
indictable offence, a court of summary jurisdiction may hear and determine
proceedings in respect of such an offence if the court is satisfied that it is
appropriate to do so and the defendant and the prosecutor consent.

''(5) Where, in accordance with sub-section (4), a court of summary
jurisdiction convicts a person of an offence against this Act, the penalty
that the court may impose is a fine not exceeding $5,000 or imprisonment for a
period not exceeding one year, or both.

''(6) Where an act or omission by a person that constitutes an offence against
sub-section (1) or (2) is also an offence against any other law, the person
may be prosecuted and convicted under that other law, but nothing in this
sub-section renders any person liable to be punished twice in respect of the
same act or omission.

''(7) Nothing in this section shall be read as intended to prevent or restrict
the operation of any law of a State or Territory under which-

   (a)  action may be taken to prevent a child from leaving Australia or being
        taken or sent outside Australia; or

   (b)  a person may be punished in respect of the taking or sending of a
        child outside Australia.

''(8) In this section, 'child' means a person who has not attained the age of
18 years.

''(9) Where an appeal against a decision of a court in particular proceedings
has been instituted and is pending, those proceedings shall, for the purposes
of sub-section (2), be taken to be pending. Obligation of owners, &c., of
vessels

''70B. (1) Where-

   (a)  a person (in this sub-section referred to as the 'relevant person') is
        entitled (whether alone or together with another person or other
        persons) to the custody or guardianship of, or access to, a child
        (including an ex-nuptial child) under an order referred to in
        sub-section 70A (1); and

   (b)  the relevant person has served on the master, owner or charterer of a
        vessel or on the agent of the owner of a vessel a statutory
        declaration made by the relevant person in relation to the order not
        earlier than 7 days before the date of service, being a statutory
        declaration that complies with the requirements of sub-section (3),
the person on whom the statutory declaration is served shall not, without
reasonable excuse, while the order continues in force, permit the child
referred to in the declaration to leave a port or place in Australia in the
vessel for a destination outside Australia except-

   (c)  in the company, or with the consent in writing (authenticated as
        prescribed), of the relevant person; or

   (d)  in accordance with an order of a court made, under this Act or under a
        law of a State or Territory, at the time of, or after, the making of
        the first-mentioned order.

Penalty: $5,000.

''(2) Where-

   (a)  a person (in this sub-section referred to as the 'relevant person') is
        a party to proceedings referred to in sub-section 70A (2) for an order
        with respect to the custody or guardianship of, or access to, a child
        (including an ex-nuptial child); and

   (b)  the relevant person has served on the master, owner or charterer of a
        vessel or on the agent of the owner of a vessel a statutory
        declaration in relation to the proceedings made by the relevant person
        not earlier than 7 days before the date of service, being a statutory
        declaration that complies with the requirements of sub-section (4),
the person on whom the statutory declaration is served shall not, without
reasonable excuse, while the proceedings are pending, permit the child
referred to in the declaration to leave a port or place in Australia in the
vessel for a destination outside Australia except-

   (c)  in the company, or with the consent in writing (authenticated as
        prescribed), of the relevant person; or

   (d)  in accordance with an order of a court made, under this Act or under a
        law of a State or Territory, after the institution of the proceedings.

Penalty: $5,000.

''(3) A statutory declaration for the purposes of sub-section (1) shall
contain full particulars of the order to which it relates, including-

   (a)  the full name and the date of birth of the child in respect of whom
        the order applies;

   (b)  the full names of the parties to the proceedings in which the order
        was made; and

   (c)  the terms of the order,
and shall contain such other matters (if any) as are prescribed.

''(4) A statutory declaration for the purposes of sub-section (2) shall
contain-

   (a)  full particulars of the proceedings to which it relates, including-

        (i)    the full name and the date of birth of the child to whom the
               proceedings relate;

        (ii)   the full names of the parties to the proceedings; and

        (iii)  the name of the court, the nature of the proceedings, the date
               of institution of the proceedings and, where an appeal has been
               instituted in the proceedings, the name of the court in which
               the appeal was instituted and the date on which the appeal was
               instituted;

   (b)  a statement that the proceedings are pending at the date of the
        declaration; and

   (c)  such other matters (if any) as are prescribed.

''(5) A declaration under this section may be served on the owner or charterer
of a vessel or on the agent of the owner of a vessel by leaving the
declaration, or by sending it by registered post addressed to the owner,
charterer or agent, at the principal place of business in Australia of the
owner, charterer or agent, as the case may be.

''(6) The master, owner or charterer of a vessel or the agent of the owner of
a vessel is not liable in any civil or criminal proceedings in respect of
anything done by him in good faith for the purpose of complying with his
obligations under this section.

''(7) Where an act or omission by a person that constitutes an offence against
sub-section (1) or (2) is also an offence against any other law, the person
may be prosecuted and convicted under that other law, but nothing in this
sub-section renders any person liable to be punished twice in respect of the
same act or omission.

''(8) Nothing in this section shall be read as intended to prevent or restrict
the operation of any law of a State or Territory under which-

   (a)  action may be taken to prevent a child from leaving Australia or being
        taken or sent outside Australia; or

   (b)  a person may be punished in respect of the taking or sending of a
        child outside Australia.

''(9) In this section-

'child' means a person who has not attained the age of 18 years;

'master', in relation to a vessel, means the person in charge or command of
the vessel;

'vessel' includes an aircraft.

''(10) Where an appeal against a decision of a court in particular proceedings
has been instituted and is pending, those proceedings shall, for the purposes
of sub-section (2), be taken to be pending.''.