New South Wales Consolidated Acts

CHILD PROTECTION (INTERNATIONAL MEASURES) ACT 2006 - SECT 18

18 Limitations when prior proceedings pending in a Convention country

(1) This section applies to the exercise of jurisdiction by a New South Wales authority under section 16 (2) (a), (b) (iii)-(v) or (c).

(2) The New South Wales authority must not exercise that jurisdiction to take a New South Wales property protection measure relating to a child if:

(a) a corresponding measure has been sought from a competent authority of a Convention country and it was sought:

(i) if the New South Wales authority is a New South Wales court-before the proceedings were started in the court, or

(ii) if the New South Wales authority is the NSW Trustee-before the NSW Trustee exercises the jurisdiction, and

(b) any of the following applies:

(i) the child is habitually resident in the Convention country,

(ii) the child is present in the Convention country and is a refugee child,

(iii) a request to assume jurisdiction is made to a competent authority of the country of the child’s habitual residence or country of refuge,

(iv) a competent authority of the country of the child’s habitual residence or country of refuge agrees to the competent authority assuming jurisdiction,

(v) the competent authority of the Convention country is exercising jurisdiction in proceedings concerning the divorce or separation of the child’s parents or the annulment of their marriage (but see subsection (3)),

(vi) the child has been wrongfully removed from or retained outside the Convention country and a competent authority of the Convention country keeps jurisdiction under Article 7 of the Child Protection Convention.

(3) Subsection (2) (b) (v) applies (subject to subsection (4)) only if:

(a) one or both of the child’s parents are habitually resident in the Convention country when the proceedings referred to in that subparagraph are started, and

(b) one or both of the parents have parental responsibility for the child, and

(c) the jurisdiction of the competent authority of the Convention country to take the measure is accepted by the parents and each other person with parental responsibility for the child, and

(d) the exercise of jurisdiction to take the measure is in the best interests of the child, and

(e) the proceedings on the application for divorce or separation of the child’s parents or the annulment of their marriage have not been finalised.

(4) Subsection (2) does not apply if the competent authority of the Convention country has declined jurisdiction or is no longer considering taking the measure sought.