PacLII Home | Databases | WorldLII | Search | Feedback

Fiji Subsidiary Legislation

You are here:  PacLII >> Databases >> Fiji Subsidiary Legislation >> Family Law Act 2003 - Family Law Regulations 2005

Database Search | Name Search | Noteup | Download | Help

  Download original PDF


Family Law Act 2003 - Family Law Regulations 2005

FIJI ISLANDS


[LEGAL NOTICE NO. 49]

FAMILY LAW REGULATIONS 2005
______


ARRANGEMENT OF REGULATIONS
______


PART I - PRELIMINARY


1. Short title and commencement
2. Interpretation


PART II - GENERAL


Division 1 - Welfare, counselling, etc.


3. Oath or affirmation of marriage counsellor (section 14)
4. Prescribed child welfare laws (section 42)
5. Prescribed child welfare authority (section 113)


Division 2 - Court proceedings and related matters


6. Directions as to practice and procedure
7. Non-compliance with Regulations and Rules
8. Court may relieve from consequences of non-compliance
9. Service in countries that are parties to certain conventions
10. Authentication of consent in writing (sections 81, 82, 83 and 84)
11. Prescribed overseas jurisdictions
12. Bringing of proceedings on behalf of child (section 128)
13. Orders for dissolution and nullity of marriage - recording in central register and notification to Registrar-General (section 37)
14. Recovery orders-prescribed public offices (section 106)
15. Conversion of currency


PART III - PARENTAGE TESTING AND REPORTS


Division 1 - General


16. Interpretation
17. Notification of accredited laboratories and nominated reporters
18. Parentage testing procedures
19. Compliance with Regulations


Division 2 - Collection, storage and testing of samples


20. Samplers
21. Provision of information by donor - Form 2
22. Collection of blood samples
23. Collection of bodily samples for DNA typing
24. Container to be sealed and labelled
25. Statement by sampler - Form 3
26. Packing and storage requirements
27. Testing of bodily samples


Division 3 - Reports


28. Reports - Form 4


PART IV - RECIPROCAL INTERNATIONAL ENFORCEMENT OF ORDER


Division 1 - Residence, contact and care orders


29. Reciprocating jurisdictions
30. Registration of overseas care orders
31. Transmission of Fiji Islands child orders to overseas jurisdiction


Division 2 - Maintenance


32. Definitions
33. Reciprocating jurisdictions and jurisdictions with restricted reciprocity
34. Registration of overseas maintenance orders
35. Transmission of orders made in the Fiji Islands for enforcement in reciprocating; jurisdictions
36. Confirmation of provisional overseas maintenance orders
37. Power to make order upon United States petition
38. Power to make provisional order against person in reciprocating jurisdiction
39. Proceedings for enforcement of overseas maintenance orders
40. Cancellation of registration in reciprocating jurisdiction
41. Cancellation of registration of overseas maintenance orders
42. Registration of overseas maintenance agreements
43. Cancellation of registration of overseas maintenance agreements
44. Transmission of maintenance agreements to prescribed overseas jurisdiction
45. Party in the Fiji Islands may apply to vary, &c. overseas maintenance order or agreement
46. Discharge, & c., of overseas maintenance order made in absence of party
47. Certain orders to be provisional only
48. Confirmation of variations made provisionally in overseas jurisdiction


PART V - CONVENTION ON RECOVERY ABROAD OF MAINTENANCE


49. Interpretation of this Part
50. Immunity of CEO in respect of orders to pay costs
51. Convention countries
52. Application for recovery of maintenance in convention countries
53. Applications by persons in convention countries for recovery of maintenance under Family Law Act
54. Proceedings on behalf of persons in convention countries for recovery of maintenance
55. Return of applications
56. Certain requests to be made only with leave of court
57. Payment of sums under orders of courts
58. Taking of evidence at request of appropriate authority in convention countries
59. Obtaining evidence in convention countries for purposes of proceedings under this Part
60. Admissibility of evidence given in convention countries
61. Orders of courts in convention countries


PART VI - CHILD ABDUCTION CONVENTION


Division 1 - Preliminary


62. Purpose
63. Interpretation
64. Meaning of "rights of custody"
65. Central Authority for the Fiji Islands
66. This Part does not affect other powers of, or rights of application to, a court
67. Immunity of CEO from orders to pay costs
68. Convention countries


Division 2 - Requests to central authorities, except for access


69. Request for return of child abducted from the Fiji Islands
70. Request for return of child abducted to the Fiji Islands


Division 3 - Court applications, except, for access


71. Applications to court
72. Orders
73. Order for the return of child removed to, or retained in, the Fiji Islands
74. Declaration that removal or retention was wrongful
75. Effect of other custody orders in the Fiji Islands or overseas
76. When a court not to make certain orders
77. Discharge of return order
78. Arrangements for return of child
79. Security for costs etc


Division 4 - Applications and requests in relation to access


80. Request for access to child in convention country
81. Request and application for access to child in the Fiji Islands


Division 5 - General


82. Reports by family and child counsellors and welfare officers
83. Service of notice of certain applications
84. Evidentiary provisions
85. Costs of applications


SCHEDULE 1 - Forms
SCHEDULE 2 - Reciprocating jurisdictions
SCHEDULE 3 - Convention on the Recovery Abroad of Maintenance
SCHEDULE 4 - Convention on the Civil Aspects of International Child Abduction


______


FAMILY LAW ACT 2003
(ACT NO. 18 OF 2003)
______


FAMILY LAW REGULATIONS 2005


IN exercise of the powers conferred upon me by section 213 of the Act, I make these Regulations -


PART I - PRELIMINARY


Short title and commencement

1.-(1) These Regulations may be cited as the Family Law Regulations 2005 and, subject to subregulation (2), come into operation on 1st November 2005.


(2) Part V comes into operation on the day appointed by the Minister by notice in the Gazette after the day on which the Convention on the Recovery Abroad of Maintenance, being the Convention mentioned in section 198 of the Act is ratified by Fiji.


Interpretation

2.-(1) In these Regulations, unless the contrary intention appears -


"Act" means the Family Law Act 2003;


"applicant" means a person who institutes or has instituted proceedings under the Act or is an applicant in pending proceedings under a repealed Act;


"application" means an application to a court for the purpose of instituting proceedings under the Act or an application to a registrar made under these Regulations;


"CEO" means -


(a) the Chief Executive Officer of the Ministry of Justice; or


(b) a person authorised by the Chief Executive Officer of the Ministry of Justice to perform a function in relation to which the expression is used,


"certified copy" means a copy of an order, decree or document certified to be a true copy by an officer of the court that made the order or by which the order has been registered or confirmed or, in the case of an overseas order, by the CEO;


"filed" has the same meaning as in the Rules of Court;


"legal practitioner" means a person enrolled as a barrister and solicitor of the High Court of Fiji;


"party to proceedings" means an applicant, respondent or intervener in proceedings under the Act;


"registrar" has the same meaning as in the Rules of Court;


"respondent" means, in relation to proceedings, a party to the proceedings other than an applicant or an intervener;


"Rules of Court" means -


(a) the Family Law Rules 2005; and


(b) to the extent to which they are applicable -


(i) the High Court Rules; or


(ii) the Magistrates' Court Rules, as the case requires;


"sealed", in relation to a document issued out of or filed or otherwise received in a court, means sealed with the seal of that court or otherwise endorsed by an officer of that court.


(2) A reference in these Regulations to a form by number is a reference to the form so numbered in Schedule 1.


PART II - GENERAL


Division 1 - Welfare. counselling, etc.


Oath or affirmation of marriage counsellor (section 14)

3. For the purposes of section 14 of the Act, a marriage counsellor must make an oath or affirmation in the following form:


"I, [name of marriage counsellor] do swear by Almighty God [or do solemnly and sincerely affirm and declare] that I will not disclose to any person any communication or admission made to me in my capacity as a marriage counsellor, unless I reasonably believe that it is necessary for me to do so -


(a) to protect a child; or


(b) to prevent or lessen a serious and imminent threat to -


(i) the life or health of a person; or


(ii) the property of a person; or


(c) to report the commission, or prevent the likely commission, of an offence involving -


(i) violence or a threat of violence to a person; or


(ii) intentional damage to property of a person or a threat of damage to property; or


(d) to enable me to discharge properly my functions as a marriage counsellor, or


(e) if a child is separately represented by a person under an order under section 125 of the Family Law Act 2003 - to assist the person to represent the child properly.".


Prescribed child welfare law (section 42)

4. For the purposes of the definition of "child welfare law" in section 42 (1) of the Act, the Juveniles Act (Cap. 56) is a prescribed law.


Prescribed child welfare authority (section 113)

5. For the purposes of section 113 (3) of the Act, the Department of Social Welfare is a prescribed welfare authority.


Division 2 - Court proceedings and related matters


Directions as to practice and procedure

6.-(1) Where a court is satisfied in the circumstances of a particular case that -


(a) the provisions of the Act, these Regulations and the applicable Rules of Court do not make adequate provision for practice and procedure: or


(b) a difficulty arises or doubt exists as to practice and procedure.


the court may give such directions with respect to the practice and procedure to be followed in the case as the court considers necessary.


(2) In proceedings to which section 4 of the Act applies, the court may give directions in all matters of practice and procedure.


(3) Directions under this regulation shall be directed to providing a speedy and inexpensive hearing of the matters in issue between the parties and shall be consistent with these Regulations and the applicable Rules of Court.


Non-compliance with Regulations and Rules

7.-(1) Non-compliance with these Regulations, or with a rule of practice or procedure in a court exercising jurisdiction under the Act, does not render proceedings in that court void unless the court so directs.


(2) In exercising its discretion under this regulation the court shall have regard to the real merits of the case, the minimizing of expense, and whether any party to the proceedings has suffered injustice or has been prejudicially affected by non-compliance with these Regulations.


Court may relieve from consequences of non-compliance

8.-(1) Subject to the Act and these Regulations -


(a) the court may, at any time, upon such terms as the court thinks fit, relieve a party from the consequences of non-compliance with these Regulations, a rule of practice and procedure of the court applicable to the proceedings or a decision of a registrar;


(b) the court may at any time, upon such terms as the court thinks fit, relieve a party from the consequences of non-compliance with an order made by a court; and


(c) the court may, upon such terms as the court thinks fit, dispense with the need for compliance by a party with any provision of these Regulations.


(2) Where these Regulations fail to make provision on any matter, the court is empowered to give, and shall give, such directions as to practice and procedure as the court thinks fit.


Service in countries that are parties to certain conventions

9.-(1) This regulation applies, subject to the provisions of the relevant convention, in relation to the service of a document in a country that is a party to a convention, extending to the Fiji Islands, regarding legal proceedings in civil and commercial matters.


(2) Where, under a convention referred to in subregulation (1), service of a document relating to proceedings is not to be effected in a country referred to in that subregulation otherwise than in accordance with the convention, service of such a document in that country shall not be effected otherwise than in accordance with this regulation.


(3) Where a party to proceedings who desires to effect service of a document relating to the proceedings on a person in a country referred to in subregulation (1) files a request for service of the document in accordance with Form 1, and deposits with the registrar of the court in which the proceedings arc pending the documents required by subregulation (4) to be deposited, the registrar shall forward the documents so deposited direct to the CEO for transmission to that country for service,


(4) For the purposes of subregulation (3), the documents to be deposited are -


(a) the document to be served;


(b) a translation of the document into the language of the country in which the service is to be effected, being a translation bearing a certificate, in that language, of the person who made the translation certifying that it is a translation of the document of which it purports to be a translation;


(c) a copy of the document to be served and of the translation; and


(d) such further copies (if any) of the document and translation as are required by the relevant convention.


(5) A document, a translation of a document or a copy of a document shall, before being forwarded to the CEO in accordance with subregulation (3), be sealed with the seal of the court.


(6) Where a registrar has received a certificate transmitted through diplomatic channels, by a judicial authority in a country referred to in subregulation (1), certifying that a document has been served on a person on a date specified in the certificate, the certificate may be filed and, subject to subregulation (7), is then evidence of the matters stated in the certificate.


(7) Where service of a document is required to be effected on a person by delivering the document to that person personally, the due service of the document shall be deemed not to have been proved by a certificate referred to in subregulation (6) unless -


(a) it also certifies the means by which the person who served the document identified the person served; or


(b) other evidence, whether by affidavit or otherwise, is provided showing that the document came to the notice of the person on whom it was to be served.


Authentication of consent in writing (sections 81, 82, 83 and 84)

10.-(1) For the purposes of sections 81 (2) (a), 82 (3) (a), 83 (3) (a) and 84 (3) (a) of the Act, a consent in writing must be authenticated by a qualified person endorsing on the consent a statement that -


(a) the qualified person is satisfied about the identity of the person signing the consent; and


(b) the consent was signed in the qualified person's presence.


(2) For the purposes of subregulation (1), a qualified person is a Justice of the Peace, a notary or a legal practitioner.


Prescribed overseas jurisdictions

11. For the purposes of the definition of "prescribed overseas jurisdiction" in section 2(1) of the Act, each country, or part of a country, specified in Schedule 2 as a reciprocating jurisdiction is declared to be a prescribed overseas jurisdiction for the purposes of -


(a) section 2(1) of the Act, in relation to the definition of "overseas maintenance agreement"; and


(b) section 174(b) of the Act.


Bringing of proceedings on behalf of child (section 128)

12. For the purposes of section 128 of the Act, the person for the time being holding or acting in the office of Director of Social Welfare is authorised to institute and conduct, on behalf of a child, proceedings with respect to the maintenance of the child.


Orders for dissolution and nullity of marriage - recording in central register and notification to Registrar-General (section 37)

13.-(1) The Registrar of the Family Division of the High Court shall cause to be maintained a register (in this regulation called "the central register") of all final orders for dissolution of marriage and nullity of marriage made by courts exercising jurisdiction under the Act.


(2) As soon as practicable after -


(a) the preparation of a memorandum that a conditional order for the dissolution of marriage has become final; or


(b) the making of an order of nullity of a marriage,


the registrar at the place where the order was made shall transmit to the person responsible for the maintenance of the central register (in this regulation called "the record-keeper") a copy of that memorandum or order.


(3) As soon as practicable after receiving a copy of a memorandum or order, the record-keeper shall -


(a) enter particulars of the orders concerned in the central register; and


(b) forward a copy of the register entry to the Registrar-General.


Recovery orders - prescribed public offices (section 106)

14. For the purposes of section 106 (1) (b) of the Act, the office of police officer is a prescribed public office.


Conversion of currency

15.-(1) For the purposes of these Regulations, an overseas order (including a provisional order) or a certificate or notice originating in an overseas jurisdiction that refers to an amount money expressed in the currency of the overseas country in which that jurisdiction is located shall be deemed to refer to the equivalent amount in Fiji Islands currency on the date on which the order (whether by registration, confirmation or otherwise) becomes an enforceable order in the Fiji Islands on the basis of the telegraphic transfer rate of exchange prevailing on that date.


(2) Where the registrar of a court receives an order, certificate or notice referred to in subregulation (1), the registrar shall ascertain the appropriate rate of exchange and endorse upon the order, certificate or notice, the rate of exchange and the conversion of the amount of money to Fiji Islands currency.


PART III - PARENTAGE TESTING AND REPORTS


Division 1 - General


Interpretation

16. In this Part, unless the contrary intention appears -


"accredited laboratory" means -


(a) a laboratory in the Fiji Islands specified by the Attorney-General, by notice under regulation 17; or


(b) a laboratory in Australia or New Zealand that is competent, for the purposes of the provisions of the law of that country corresponding to Subdivision C of Division 11 of Part VI of the Act, to carry out parentage testing procedures;


"bodily sample" is not limited to a sample of blood;


"donor" means the person required to provide a bodily sample for the purposes of a parentage testing procedure;


"HLA" means human leucocyte antigen;


"nominated reporter" means -


(a) in relation to an accredited laboratory in the Fiji Islands - the person specified as the nominated reporter for that laboratory under regulation 17;


(b) in relation to an accredited laboratory in Australia or New Zealand - the person who, for the purposes of the provisions of the law of that country corresponding to Subdivision C of Division 11 of Part VI of the Act, is authorised to report the results of parentage testing procedures;


"report" means a report in accordance with regulation 28;


"sample" means a sample taken from a donor for the purposes of a parentage testing procedure;


"sampler" means a person who takes a bodily sample from a donor for the purposes of a parentage testing procedure;


"testing" means the implementation, or any part of the implementation, of a parentage testing procedure.


Notification of accredited laboratories and nominated reporters

17.-(1) The Attorney-General -


(a) may, by notice in the Gazette, specify laboratories in the Fiji islands as accredited laboratories for the purposes of this Part; and


(b) shall, in the same or a different notice, specify for each accredited laboratory a nominated reporter.


(2) The Attorney-General shall not specify a laboratory as an accredited laboratory unless he is satisfied that the standards of practice of the laboratory are equivalent to those applicable for the accreditation or recognition of a laboratory, for the purposes of the provisions of the law of Australia or New Zealand corresponding to Subdivision C of Division 11 of Part VI of the Act, as a laboratory competent to carry out parentage testing procedures under that law.


Parentage testing procedures

18. For the purposes of the definition of "parentage testing procedure" in section 42 (1) of the Act, the following medical procedures are prescribed:


(a) red cell antigen blood grouping;


(b) red cell enzyme blood grouping;


(c) HLA tissue typing;


(d) testing for serum markers;


(e) DNA typing.


Compliance with Regulations

19. A parentage testing procedure is taken to be carried out in accordance with these Regulations if -


(a) it is carried out -


(i) in compliance with Division 2,


(ii) at an accredited laboratory; and


(iii) in accordance with standards of practice that entitle the laboratory to be so accredited; and


(b) it is supplemented by a report under Division 3.


Division 2 - Collection, storage and testing of samples


Samplers

20. A person must not take a bodily sample from a the purposes of a parentage testing procedure unless -


(a) the person is a registered medical practitioner; or


(b) the person is employed by a hospital, a pathology practice, a parentage testing practice or a registered medical practitioner for the purpose of taking a bodily sample from a donor.


Provision of information by donor - Form 2

21.-(1) A sampler must not take a bodily sample from a donor before the donor or, if appropriate, a person described in subregulation (2), has -


(a) completed an affidavit in accordance with Form 2, immediately before the sampler takes the bodily sample from the donor; and


(b) either -


(i) provided to the sampler a recent photograph of the donor, measuring approximately 45 millimetres by 35 millimetres, that shows a full face view of the donor's head and the donor's shoulders against a plain back ground; or


(ii) made a written arrangement with the sampler for a photograph of that kind to be taken.


(2) If the donor is a child under the age of 18 years, or a person who is suffering from a mental disability, the affidavit referred to in subregulatron (1) (a) may be completed only -


(a) in the case of a child under the age of 18 years - by a person who is responsible for the long-term care, welfare and development of the child; or


(b) in the case of a person who is suffering from a mental disability -


(i) by a trustee or manager in relation to the person appointed under law; or


(ii) by a person who is responsible for the care, welfare and development of the person suffering from a mental disability.


Collection of blood samples

22.-(1) A sampler may take a sample of blood from a donor only with a needle or syringe that -


(a) has not been used for any purpose;


(b) has been sterilised; and


(c) is disposable.


(2) Before taking a sample of blood from a donor, the sampler must ensure that the area of the donor's skin into which the needle is to be inserted to withdraw the blood has peen cleaned with an antiseptic.


Collection of bodily samples for DNA typing

23.-(1) This regulation applies to the taking of a bodily sample (except a sample of blood) from a donor for the purposes of a parentage testing procedure that is DNA typing.


(2) A sampler must not take a bodily sample from a donor with a swab unless the swab -


(a) has not been used for any purpose; and


(b) has been sterilised.


(3) If the bodily sample to be taken from a donor is a skin scraping or a hair root, the implement used by the sampler to take the sample must have been sterilised before use.


Container to be sealed and labelled

24.-(1) If a bodily sample is taken from a donor, the sampler must ensure that -


(a) the &ample is placed in a container -


(i) immediately after it is taken; and


(ii) in the presence of the donor;


(b) the container has not previously been used for any purpose; and


(c) the container is sealed in a way that, if it were opened after being seal that fact would be evident on inspection of the container;


(d) the container is labelled in a way that -


(i) if the label, or any part of the label, were removed; or


(ii) if writing on the label were impaired by alteration or erasure,


the removal of the label, or the impairment, would be evident on inspection of the container;


(e) the particulars on the label are inscribed in ink and include -


(i) the full name of the donor;


(ii) the date of birth and the sex of the donor; and


(iii) the date and time at which the sample was taken; and


(f) when paragraph (e) is complied with - the sampler and the donor sign the label. in ink.


(2) If the donor is a child under the age of 18 years -


(a) the procedure specified in subregulation (1) (a) must be completed in the presence of the person who is responsible for the long-term care, welfare and development of the child; and


(b) the procedure specified in subregulation (1) (f) is taken to be satisfied only if the person who is responsible for the long-term care, welfare and development of the child signs the label.


(3) If the donor is a person who is suffering from a mental disability -


(a) the procedure specified in subregulation (1) (a) must be completed in the presence of -


(i) a trustee or manager in relation to the person appointed under law; or


(ii) a person who is responsible for the care, welfare and development of the person suffering from a mental disability; and


(b) the procedure specified in subregulation (1) (f) is taken to be complied with only if the label is signed -


(i) by a trustee or manager in relation to the person appointed under law; or


(ii) by a person who is responsible for the care, welfare and development of the person suffering from a mental disability.


Statement by sampler - Form 3

25. After taking a bodily sample from a donor, the sampler must -


(a) complete a statement in accordance with Form 3;


(b) affix the photograph of the donor referred to in regulation 21 (1) (b) to the statement; and


(c) sign his or her name partly on the photograph and partly on the statement in such a way that, if the photograph were later removed from the statement, the removal would be evident from inspection of the statement.


Packing and storage requirements

26.-(1) A bodily sample must be packed, stored and transported to a laboratory for testing in a manner that -


(a) will preserve the integrity of the sample; and


(b) ensures that the testing of the sample will produce the same results as would have been obtained if the sample had been tested immediately after collection.


(2) The sampler must ensure that the following documents are sent to the laboratory with the sample -


(a) the affidavit completed under regulation 21 (1) (a);


(b) the statement completed under regulation 25.


Testing of bodily samples

27.-(1) A laboratory to which a bodily sample has been sent for testing must ensure that the testing is completed -


(a) if the proposed procedure is red cell antigen blood grouping, red cell enzyme blood grouping or testing for serum markers - within 6 days after the sample is taken;


(b) if the proposed procedure is HLA tissue typing - within 3 days after the sample is taken; or


(c) if the proposed procedure is DNA typing - within a reasonable time after the sample is taken.


(2) If the proposed procedure is red cell enzyme blood grouping or testing for serum markers, subregulation (1) (a) is complied with if a dried sample of the bodily sample to be tested is prepared within 6 days after the sample is taken from the donor.


Division 3 - Reports


Reports - Form 4

28.-(1) For the purposes of section 143 (b) of the Act, a report must be prepared, in accordance with this regulation, relating to the information obtained as a result of carrying out a parentage testing procedure.


(2) The report must be in accordance with Form 4.


(3) Part 1 of the report must be completed by the nominated reporter for the laboratory.


(4) Part 2 of the report must be completed by -


(a) the person who carried out the parentage testing procedure; or


(b) the person under whose supervision the parentage testing procedure was carried out.


(5) A report completed otherwise than in accordance with this regulation is taken to be of no effect.


PART IV - RECIPROCAL INTERNATIONAL ENFORCEMENT OF ORDERS


Division 1 - Residence, contact and care orders


Reciprocating jurisdictions

29. Each of the jurisdictions specified in Schedule 3 is declared to be a reciprocating jurisdiction for the purposes of this Division.


Registration of overseas care orders

30.-(1) Where the CEO receives -


(a) from a prescribed overseas jurisdiction a certified copy of an overseas child order, within the meaning given by section 147 of the Act, that was made in that jurisdiction; and


(b) a certificate signed by an officer of a court or by some other authority in that jurisdiction relating to the order and containing a statement that the order is, at the date of the certificate, enforceable in that jurisdiction,


the CEO shall, if there are reasonable grounds for believing that the child who is the subject of the order, a parent of that child, or a person having the right of custody of, access to or contact with that child, is present in, or proceeding to, the Fiji Islands, send the documents received by the CEO to a registrar of the Family Division of the High Court.


(2) When the registrar receives from the CEO the documents referred to in subregulation (1), the registrar shall register the order by filing in the court at Suva a certified copy of the order and the certificate relating to the order and noting the fact and the date of the registration on the certified copy.


(3) An overseas order registered in accordance with this regulation is enforceable throughout the Fiji Islands until the registration has been cancelled.


(4) Where it appears to a court that the documents referred to in subregulation (1) have been received by the court from a person other than the CEO, the court may, if all other requirements of subregulation (1) are satisfied, register the order.


(5) Where a court exercising jurisdiction under section 149 of the Act substantially varies the order, the registrar of the court shall forthwith forward to the court or to the appropriate authority in the prescribed overseas jurisdiction -


(a) 3 certified copies of the order of the court and the reasons for the order;


(b) a copy of the depositions; and


(c) such further material as the court directs.


(6) This regulation does not prevent a court that has jurisdiction under the Act from receiving evidence of an order made in an overseas jurisdiction whether or not the jurisdiction is a prescribed overseas jurisdiction), being an order that -


(a) deals with the person with whom a child is supposed to live or have contact; or


(b) provides for a person to have custody of, or access to, a child.


Transmission of Fiji Islands child orders to overseas jurisdiction

31.-(1) This regulation applies if -


(a) a residence order, contact order or specific issues order is made by a court in the Fiji Islands in relation to a child who is under 18; and


(b) the order may be enforced in a prescribed overseas jurisdiction under provisions corresponding to Subdivision A of Division 12 of Part VI of the Act.


(2) If the registrar of the court in which the order was made, registered or last varied, receives a written request from a person mentioned in subregulation (3) to send the order to the prescribed overseas jurisdiction for registration and enforcement in that jurisdiction, the registrar must send the documents mentioned in subregulation (4) to the appropriate court or authority in the prescribed overseas jurisdiction.


(3) For the purposes of subregulation (2), a request may be made by a person -


(a) with whom the child is supposed to live or have contact under the order; or


(b) who has a right to custody of, or access to, the child under the order.


(4) For the purposes of subregulation (2), the documents are as follows:


(a) 3 certified copies of the order;


(b) a certificate signed by the registrar stating that the order is, at the date of the certificate, enforceable in the Fiji Islands;


(c) any information and material the registrar holds that may assist in identifying and locating the child or any other person who is subject to the order,


(d) a request in writing that the order be made enforceable in the prescribed overseas jurisdiction.


(5) if -


(a) the order is registered in a court in the prescribed overseas jurisdiction; and


(b) a court in that jurisdiction makes an order under a law corresponding to section 149 of the Act (the "overseas order");


a court having jurisdiction under the Act may treat the overseas order as an overseas child order for the purposes of exercising jurisdiction under that section.


(6) If a court exercises jurisdiction under section 149 of the Act in relation to a child who is the subject of the overseas order, the registrar of the court must send to the court in the prescribed overseas jurisdiction -


(a) 3 certified copies of any order made by the court and the reasons for the order; and


(b) such further material as the court directs.


(7) Nothing in this regulation prevents a person having a right of custody of, access to or contact with, a child under the order from -


(a) obtaining certified copies of the order; or


(b) applying to a court in an overseas jurisdiction (whether or not it is a prescribed overseas jurisdiction) for registration and enforcement of the order in that jurisdiction.


(8) In this regulation -


"custody", in relation to a child, includes -


(a) guardianship of the child;


(b) responsibility for the long-term or day-to-day care, welfare and development of the child; and


(c) responsibility as the person or persons with whom the child is to live;


"overseas child order" has the meaning given by section 147 of the Act.


Division 2 - Maintenance


Definitions

32. In this Division -


"jurisdiction with restricted reciprocity" has the same meaning as in section 197 of the Act;


"maintenance order" means -


(a) a maintenance order within the meaning of section 197 of the Act; and


(b) an order made under section 102 or 103 of the Act;


"reciprocating jurisdiction" has the same meaning as in section 197 of the Act.


Reciprocating jurisdictions and jurisdictions with restricted reciprocity

33.-(1) Each of the jurisdictions specified in Part I of Schedule 2 is declared to be a reciprocating jurisdiction for the purposes of section 197 of the Act.


(2) Each of the jurisdictions specified in Part II of Schedule 2 is declared to be a jurisdiction with restricted reciprocity for the purposes of section 197 of the Act.


Registration of overseas maintenance orders

34.-(l) Subject to subregulation (2), where the CEO receives -


(a) a certified copy of a maintenance order from a reciprocating jurisdiction or a jurisdiction with restricted reciprocity, being an order made in that jurisdiction; and


(b) a certificate signed by an officer of a court or other authority in that jurisdiction relating to the order and containing -


(i) a statement that the order is, at the date of the certificate, enforceable in that jurisdiction; and


(ii) a statement as to the amount of any arrears due under the order,


the CEO shall, if there are reasonable grounds for believing that the person against whom the order was made is resident in or proceeding to the Fiji Islands, send the documents received by the CEO to the registrar of the Family Division of the High Court.


(2) Where the registrar receives from the CEO the documents referred to in subregulation (1), the registrar shall register the order by filing in the court a certified copy of the order and by noting the fact and date of the registration on that certified copy.


(3) An overseas maintenance order registered under this regulation is, until the registration is cancelled, enforceable in the Fiji Islands and has effect in the Fiji Islands as .registration it were an order made under the Act, both with respect to any arrears payable under the order and with respect to amounts becoming due under the order after it is so registered.


(4) Upon the registration of an order in a court, the registrar of the court shall -


(a) notify an officer of the court or other authority in the reciprocating jurisdiction or jurisdiction with restricted reciprocity, as the case may be, of the registration; and


(b) cause a certified copy of the order and a notice of registration of the order specifying -


(i) the amount (if any), including arrears, due under the order; and


(ii) the person, authority or court to whom or to which money payable under the order is to be paid,


to be served, in accordance with Division 4.2 of the Family Law Rules 2005, upon the person against whom the order was made.


(5) Where, immediately before the date of commencement of section 197 of the Act, an overseas maintenance order was registered in a court in the Fiji Islands, that order may continue to be enforced under these Regulations as if it were registered under this regulation.


(6) The receipt of a person, authority or registrar of a court for any amount paid, in pursuance of this regulation, to that person, authority or court under an order shall be sufficient discharge of the liability of the person required under the order to pay that amount.


Transmission of orders made in the Fiji Islands for enforcement in reciprocating jurisdictions

35. Where a Maintenance order made in the Fiji Islands is in force, and it appears that the person against whom the order was made is resident in or is proceeding to an overseas jurisdiction, being a reciprocating jurisdiction or a jurisdiction with restricted reciprocity, a registrar of the court in which the order was made or is registered may, of the registrar's own motion, or on the application of a person for whose benefit the order was made, send to the CEO -


(a) 3 certified copies of the order;


(b) a certificate stating what moneys and arrears are due, payable and accruing under the order;


(c) a certificate signed by the registrar that the order is, at the date of the certificate, enforceable in the Fiji Islands;


(d) such information and material (if any) as the registrar possesses for ascertaining the identity and the whereabouts of the person against whom the order was made; and


(e) a request in writing that the CEO should seek to have the Fiji Islands order made enforceable in !hat overseas jurisdiction,


and the CEO shall, on receipt of those documents, cause the documents referred to in paragraphs (a), (b) and (c) and any information or material received by him, being information or material referred to in paragraph (d), to be transmitted to that overseas jurisdiction with a request in writing that the Fiji Islands order be made enforceable in that overseas jurisdiction.


Confirmation of provisional overseas maintenance orders

36.-(1) Where -


(a) a maintenance order has been made in an overseas jurisdiction being a reciprocating jurisdiction or a jurisdiction with restricted reciprocity;


(b) the order has no effect under the law of that jurisdiction unless and until it is confirmed by a court outside that jurisdiction;


(c) a certified copy of the order and a copy of the depositions of the witnesses in the proceedings in which the order was made, together with a statement of the grounds on which the order could have been opposed if the person against whom the order was sought had appeared at the hearing, have been received by the CEO; and


(d) there are reasonable grounds for believing that -


(i) the person is resident in, or is proceeding to, the Fiji Islands; and


(ii) the order will have effect under the law of the overseas jurisdiction if it is confirmed by a court having jurisdiction under the Act,


the CEO shall send the documents received by the CEO to a registrar of the Family Division of the Magistrates' Court.


(2) After receipt by the registrar of the documents referred to in subregulation (1), an application may be issued by the registrar, calling upon the person against whom the order is sought to show cause why that order should not be confirmed.


(3) An application under subregulation (2) shall be served in accordance with Division 4.2 of the Family Law Rules 2005.


(4) On the hearing of an application under subregulation (2), a person entitled to money payable under the order to which the application relates may appear personally or be represented by -


(a) a legal practitioner;


(b) a person holding office as a family law enforcement officer under rule 7.13(1) of the Family Law Rules 2005.


(5) On the hearing of an application under subregulation (2), it shall be open to the respondent to raise any ground of opposition that the respondent could have raised in the original proceedings or any ground of opposition that the respondent could have raised had the proceedings in which the provisional overseas order was made been heard in the Fiji Islands, and the statement referred to in subregulation (1) (c) shall be conclusive evidence that the grounds referred to in that statement are the grounds of opposition that could have been raised in the original proceedings.


(6) Upon the hearing of the application, the court may -


(a) confirm the provisional order (either with or without modification);


(b) discharge the provisional order; or


(c) adjourn the proceedings, and remit the provisional order to the court that made it with a request that that court take further evidence and further consider its provisional order.


(7) Where a provisional order is confirmed under this regulation, the court may, if it thinks fit, in the order confirming the provisional order, specify -


(a) the time or times by which the money payable under the order that has been confirmed is to be paid;


(b) the person, authority or court to whom or to which that money is to be paid; and


(c) where necessary, the means by which that money shall be paid or disbursed.


(8) Where a provisional order is confirmed under this regulation (whether with or without modification), the order as so confirmed is enforceable in the Fiji Islands and has effect in the Fiji Islands as if it were an order made under the Act.


(9) Where the court adjourns the proceedings under subregulation (6) (c), the court may make such interim orders for periodic payments by the respondent as it thinks fit.


(10) Where a court confirms or discharges an order in accordance with subregulation (6) (a) or (b), the registrar shall notify an officer of the court or other authority in the overseas jurisdiction of the confirmation or discharge.


Power to make order upon United States petition

37.-(1) Where -


(a) a petition has been filed in a court in a reciprocating jurisdiction in the United States of America seeking a support order against a person alleged in the petition to have a duty of support;


(b) that court gives a certificate to the effect that the petition sets forth facts from which it may be determined that the person owes such a duty of support;


(c) the CEO has received certified copies of the petition and the certificate, together with a copy of the provisions of the law of that jurisdiction to which the petition and certificate relate; and


(d) there are reasonable grounds for believing that the person is ordinarily resident in, present in, or proceeding to, the Fiji Islands,


the Secretary shall cause those documents to be sent to a registrar of the Family Division of the Magistrates' Court.


(2) Upon receiving the documents referred to in subregulation (1), the registrar may issue an application calling upon the person alleged in the petition to owe a duty of support to show cause why an order in the same terms as the order sought in the petition should not be made.


(3) The registrar must serve a copy of the application on the person -


(a) by delivering it to the person personally;


(b) by sending it by prepaid post to the person at the person's last known address; or


(c) by posting or delivering it to the person at the person's address for service within the meaning of the Rules of Court.


(4) Documents served under subregulation (3) (b) must be accompanied by a form of acknowledgment of service for completion by the person served.


(5) On the hearing of an application, a person who, if the order to which the application relates were made, would be entitled to money payable under the order may appear personally or be represented by -


(a) a legal practitioner;


(b) the registrar of a court; or


(c) an officer of the Ministry of Justice.


(6) On the hearing of an application, it shall be open to the respondent to raise any ground of opposition that the respondent -


(a) could have raised in relation to the petition in the relevant court in the United States of America; or


(b) could raise in proceedings in relation to the provision of maintenance in a court in the Fiji Islands having jurisdiction under the Act.


(7) On the hearing of an application, the court may -


(a) make an order for the provision of maintenance in the terms of the order sought in the petition (with or without modification),


(b) refuse to make an order; or


(c) adjourn the proceedings and remit the petition and certificate to the court in which the petition was originally filed with a request that that court take further evidence and further consider the certifying of the petition.


(8) Where an order is made under this regulation, the court may, if it thinks fit, specify -


(a) the time or times by which the money payable under the order is to be paid;


(b) the person, authority or court to whom or to which that money is to be paid; and


(c) where necessary, the means by which that money shall be paid or disbursed.


(9) Where the court adjourns the proceedings under subregulation (6) (c), the court may make such interim orders for periodic payments by the respondent as it thinks fit.


(10) Where, in relation to a petition, the court makes or refuses to make an order under this regulation, the registrar of the court shall, as soon as practicable after the making of such decision, give notice of the decision to the court in which the petition was filed or other authority in the United States of America which caused the petition to be sent to the CEO.


(11) In this regulation -


"application" means an application under subregulation (2).


"certificate" means a certificate referred to in subregulation (1) (b).


"petition" means a petition referred to in subregulation (1) (a).


(12) In this regulation, a reference to a duty of support is a reference to a duty of support within the meaning of the law under which the relevant petition is filed in a reciprocating jurisdiction.


Power to make provisional order against person in reciprocating jurisdiction

38.-(1) Where a respondent has not been served with an application to a court for a maintenance order and has not consented to the order, and the court is satisfied that the respondent is resident in, or is proceeding to, a reciprocating jurisdiction or a jurisdiction with restricted reciprocity, the court may, in the absence of the respondent, make any order that it could have made if the application had been duly served on the respondent and the respondent had failed to appear at the hearing of the application.


(2) An order made under subregulation (1) shall be provisional only and shall have no effect unless and until confirmed (either with or without modification) by a competent court in a reciprocating jurisdiction, or a jurisdiction with restricted reciprocity, in which the respondent is resident at the time of that confirmation, and the order shall be expressed accordingly.


(3) Where a court makes an order under subregulation (1), the registrar shall send to the CEO -


(a) a copy of the depositions of the witnesses;


(b) 3 certified copies of the order;


(c) a statement of the grounds on which the making of the order could have been opposed if the respondent had appeared at the hearing; and


(d) the information and material (if any) which the registrar possesses for ascertaining the identity and whereabouts of the respondent,


and the CEO shall, on receipt of those documents, cause them to be transmitted to a court in the jurisdiction in which the respondent is resident or to which the respondent is proceeding, With a request in writing that proceedings be instituted with respect to the confirmation and enforcement of the provisional order.


(4) Where an order made under subregulation (1) has come before a court in an overseas jurisdiction for confirmation and the order has been remitted by that court to the court in which the order was made for the taking of further evidence, the latter court shall, after notice has been given to such persons and in such manner as the court thinks fit, proceed to take the evidence, and shall cause the depositions of the witnesses to be sent to the court in the overseas jurisdiction.


(5) If, upon the taking of further evidence, it appears that the order ought not to have heel, made, the court may rescind the order or may, if it thinks fit, make a fresh provisional Order tinder subregulation (1).


(6) Where the court takes evidence in pursuance of a request made under subregulation (4), the court may, for the purposes of subregulation (5), have regard to the evidence given in that other court.


(7) Where a court in an overseas jurisdiction in which the respondent is resident for the time being confirms (either with or without modification) a provisional order made under this regulation, the order has effect in the Fiji Islands as so confirmed.


(8) Where a court in an overseas jurisdiction confirms (either with or without modification) a provisional order made under this regulation, then, in any proceedings arising out of or relating to the order, it shall be presumed, unless the contrary is proved, that the respondent was resident in the overseas jurisdiction at the time when the order was confirmed.


Proceedings for enforcement of overseas maintenance orders

39.-(1) Where an overseas maintenance order is enforceable in the Fiji islands by virtue of these Regulations -


(a) all proceedings may be taken for the enforcement of the order; and


(b) the provisions of the Act, these Regulations and the Rules of Count shall, so far as they are applicable, and with such modifications as are necessary, apply to and in relation to proceedings for the enforcement of the order, as if the order were a maintenance order made under Part VII of the Act by the court in which the overseas order is registered under regulation 34 (2) or confirmed under regulation 36 (6), as the case may be.


(2) Proceedings for the enforcement of an overseas maintenance order may he taken by any person who would, if the order had been made in the Fiji Islands, be entitled to take proceedings under the order or, on behalf of that person, by a person holding office as a family law enforcement officer under rule 7.13 (1) of the Family Law Rules 2005.


Cancellation of registration in reciprocating jurisdiction

40.-(1) Where -


(a) a maintenance order made in the Fiji Islands is, under the law of a reciprocating jurisdiction or a jurisdiction with restricted reciprocity, enforceable in that jurisdiction; and


(b) the court in which the order was made is satisfied that there are reasonable grounds for believing that the person against whom the order was made is not resident in, or proceeding to, that reciprocating jurisdiction, or it appears to the court that there is some good reason why the order should no longer be enforceable in that jurisdiction,


the court may direct that steps be taken to cancel the registration of the order in that jurisdiction.


(2) Where a court directs under subregulation (1) that steps he taken to cancel the registration of an order in a jurisdiction, the registrar of that court shall send to an appropriate authority in that jurisdiction a request in writing that the order be no longer enforceable in that jurisdiction.


(3) Where a court directs under subregulation (1) that steps be taken to cancel the registration of an order in a jurisdiction, the order shall cease to be enforceable in that jurisdiction for the purposes of these Regulations.


Cancellation of registration of overseas maintenance orders

41.-(1) Where -


(a) an overseas maintenance order is registered or confirmed under these Regulations; and


(b) the court in which the order is registered or confirmed receives a request in writing made by the court that made the order or some other competent authority in the overseas jurisdiction that the order be made no longer enforceable in the Fiji Islands,


the first-mentioned court shall direct its registrar to cancel the registration of the order by noting the fact and date of the cancellation on the certified copy of the order filed in the court.


(2) Upon the cancellation of the registration of an overseas maintenance order, the order ceases to be enforceable in the Fiji Islands.


(3) Where the registrar of a court cancels the registration of an overseas maintenance order in pursuance of a request in writing having been received from a court or authority referred to in subregulation (1) (b), the registrar shall cause notice in writing of the fact that the registration has been cancelled, and of the date of the cancellation, to be given to the person who was required to make payments under the order.


Registration overseas maintenance agreements

42.-(1) An overseas maintenance agreement that has force and effect in a prescribed overseas jurisdiction may be registered in a court having jurisdiction under the Act.


(2) Where the CEO receives -


(a) a certified copy of an overseas maintenance agreement from a prescribed overseas jurisdiction; and


(b) a certificate signed by an officer of a court or other authority in that jurisdiction relating to the agreement and containing -


(i) a statementthattheagreementis,atthedateofthecertificate,enforceable in that jurisdiction; and


(ii) a statement as to the amount of any arrears due under the agreement,


the CEO shall, if there are reasonable grounds for believing that the person against whom the agreement is enforceable is resident in or proceeding to the Fiji Islands, send the documents received by the CEO to the registrar of the Family Law Division of the High Court.


(3) Where the registrar receives from the CEO the documents referred to in subregulation (1), the registrar shall register the agreement by filing in the court the certified copy of the agreement and by noting the fact and date of the registration on that certified copy.


(4) An overseas maintenance agreement registered under subregulation (3) is, until the registration is cancelled, enforceable in the Fiji Islands as if it were a maintenance agreement that had been entered into in the Fiji Islands and registered under section 171 of the Act.


(5) Upon registration of an overseas maintenance agreement under this regulation, the registrar shall -


(a) notify an officer of the court or other authority in the prescribed overseas jurisdiction of the registration; and


(b) cause a certified copy of the agreement and a notice of registration of the agreement specifying -


(i) the amount (if any), including arrears, due under the agreement; and


(ii) the person, authority or court to whom or to which money payable under the agreement is to be paid,


to be served, in accordance with Division 4.2 of the Family Law Rules 2005, upon the person required to make payments under the agreement.


(6) The receipt of a person, authority or registrar of a court for any amount paid, in pursuance of this regulation, to that person, authority or court under an agreement shall be sufficient discharge of the liability of the person required under the agreement to pay that amount.


Cancellation of registration of overseas maintenance agreements

43.-(1) Where -


(a) an overseas maintenance agreement is registered under these Regulations; and


(b) the court in which the agreement is registered receives a request in writing from-


(i) the parties to the agreement, or


(ii) the court or other authority in the prescribed overseas jurisdiction an officer of which signed the certificate referred to in regulation 42 (2) (b) relating to the agreement, that the agreement be no longer enforceable in the Fiji Islands,


the first-mentioned court shall direct its registrar to cancel the registration of the agreement by noting the fact and date of cancellation on the certified copy of the agreement filed in the court.


(2) Upon the cancellation of the registration of an overseas maintenance agreement under subregulation (1), the agreement ceases to be enforceable in the Fiji Islands.


(3) Where the registrar of a court cancels the registration of an overseas maintenance agreement in pursuance of a request in writing having been received from a court or authority referred to in subregulation (1) (b) (ii), the registrar shall cause notice in writing of the fact that the registration has been cancelled, and of the date of the cancellation, to be given to the person who was required to make payments under the agreement.


Transmission of maintenance agreements to prescribed overseas jurisdiction

44.-(1) Where -


(a) a maintenance agreement registered in a court exercising jurisdiction under the Act remains in force;


(b) the agreement may be enforced in a prescribed overseas jurisdiction as if it were an order of a court of that jurisdiction; and


(c) a person having rights under the agreement so requests in writing,


the registrar of court in which the agreement is registered shall send to the appropriate court or authority in the prescribed overseas jurisdiction -


(d) 3 certified copies of the agreement sealed by the court;


(e) 3 certified copies of the order, if any, approving the agreement;


(f) such information and material (if any) as the registrar possesses for ascertaining the identity and whereabouts of the person obliged to make payments under the agreement;


(g) a certificate, signed by the registrar, containing a statement that the agreement is, at the date of the certificate, enforceable in the Fiji islands;


(h) a certificate stating what moneys are due, payable and accruing unde the agreement; and


(j) a request in writing that the agreement be made enforceable in that prescribed overseas jurisdiction.


(2) Nothing in these Regulations prevents a party to a registered maintenance agreement or a child who is a beneficiary under such agreement from -


(a) obtaining copies of the agreement sealed by the court and of any order approving the agreement; and


(b) applying to a court in any over seas jurisdiction(whether or not the jurisdiction is a prescribed overseas jurisdiction) for enforcement of the maintenance agreement in that jurisdiction.


Party in the Fiji Islands may apply to vary, & c., overseas maintenance order or agreement

45.-(1) Where an overseas maintenance order is enforceable in the Fiji Islands, a person for whose benefit the order was made or the person against whom the order was made may apply to a court in which the order is registered for an order discharging, suspending, reviving or varying the overseas maintenance order.


(2) Where an overseas maintenance agreement is enforceable in the Fiji Islands, a person for whose benefit the agreement was entered into or the person who is liable to make payments under the agreement may apply to a court in which the agreement is registered for an order discharging, suspending, reviving or varying the agreement or discharging or waiving arrears under the agreement.


(3) In an application under subregulation (1) or (2), the law to be applied is the law in force in the Fiji Islands under the Act.


Discharge, &c., of overseas maintenance order made in absence of party

46. Where -


(a) an application is made under regulation 45 (1) by the person against whom the order was made;


(b) the applicant was not duly served with a summons to appear in the proceedings in which the order was made, did not appear in those proceedings and did not consent to the making of the order; and


(c) the application is made within 6 months after service on the applicant of notice of registration of the order in the Fiji Islands,


the applicant may raise any matter that the applicant could have raised under Part VII of the Act as if the proceedings in which the overseas maintenance order was made had been heard in the Fiji Islands.


Certain orders to be provisional only

47.-(1) Where the court proposes to make an order under regulation 45 and the law of the overseas jurisdiction in which the original order was made or in which the maintenance agreement is enforceable, as the ease may be, provides for the confirmation by a court of that jurisdiction of orders of a kind referred to in subregulation (1) or (2) of that regulation if made as provisional orders, the order under regulation 45 shall be provisional only and have no effect unless and until so confirmed (with or without modification), and the order shall be expressed accordingly.


(2) A provisional order in accordance with subregulation (1) may be made notwithstanding the fact that the respondent has not been served with the application to the court and has not consented to the order proposed in the application.


(3) Where a provisional order is made by a court in accordance with subregulation (1), the registrar of the court shall send a certified copy of the provisional order, together with a copy of the depositions of the witnesses, to the court in the overseas jurisdiction in which the original order was made.


(4) Where the court in the overseas jurisdiction confirms (with or without modification) a provisional order made on an application under regulation 45, the order has effect in the Fiji Islands as so confirmed.


(5) Where a provisional order made in accordance with subregulation (1) is remitted by the court in an overseas jurisdiction for the taking of further evidence. the court to which the order has been remitted shall, after notice has been given to the applicant for the order and to such persons and in such manner as the court thinks fit, proceed to take the evidence, and shall cause a copy of the depositions of the witnesses to be sent to the tout in the overseas jurisdiction.


(6) If, upon taking the further evidence, it appears to the court that the order ought not to have been made, the court may rescind the order and may, if it thinks fit, make a fresh provisional order.


Confirmation of variations made provisionally in overseas jurisdiction

48.-(1) Where the registrar of a court receives -


(a) a certified copy of -


(i) a provisional order made by a court in an overseas jurisdiction varying, discharging, suspending or reviving a maintenance order made in the Fiji Islands and enforceable in that overseas jurisdiction; or


(ii) a provisional order made by a court in an overseas jurisdiction varying, discharging, suspending or reviving an overseas maintenance order made in that jurisdiction and enforceable in the Fiji Islands by virtue of these Regulations; and


(b) a copy of the depositions of the witnesses who gave evidence at the hearing of the application upon which the provisional order was made,


the registrar shall apply to the court for an order confirming the provisional order.


(2) A registrar making an application under subregulation (1) shall cause a copy of the application to be served on the respondent in accordance with Division 4.2 of the Family Law Rules 2005.


(3) Upon the hearing or the application the court may -


(a) confirm the provisional order (with or without modification);


(b) discharge the provisional order; or


(c) adjourn the proceedings and remit the provisional order to the court that made it with a request that the court take further evidence and further consider its provisional order.


(4) Where a provisional order is confirmed under this regulation (whether with or without modification), the order as so confirmed has effect in the Fiji Islands as if it were an order made by a court having jurisdiction under the Act.


(5) In this regulation, a reference to a provisional order shall be read as including a reference to a provisional variation of a Fiji Islands maintenance agreement or to a provisional variation of an overseas maintenance agreement, as the case requires.


PART V - CONVENTION ON RECOVERY ABROAD OF MAINTENANCE


Interpretation of this Part

49.-(1) In this Part, unless the contrary intention appears -


"Convention" means the Convention on the Recovery Abroad of Maintenance, referred to in section 198 of the Act, a copy of the English text of which is set out in Schedule 3;


"convention country" means a country that under regulation 51 is a convention country;


"Receiving Agency" has the meaning that it has in the Convention;


"Transmitting Agency" has the meaning that it has in the Convention.


(2) In this Part, unless the contrary intention appears -


(a) reference to payment of money far the maintenance of a child includes a reference to payment of money for the education of that child; and


(b) a reference to proceedings under this Part in a court includes a reference to proceedings on appeal from original proceedings under this Part.


(3) The purpose of this part is to give effect to section l98 of the Act.


Immunity of CEO in respect of orders to pay costs

50. The CEO shall not be made subject to any order to pay costs in relation to the exercise of the powers, or the performance of the functions, of the CEO under this Part.


Convention countries

51.-(1) For the purposes of this Part, each country in respect of which the Convention is in force for the Fiji Islands is a convention country, subject to the reservations (if any) applicable to the Convention having force for the Fiji Islands in relation to that country.


(2) The CEO shall -


(a) upon the entry into force for the Fiji Islands of the Convention, publish a notice in the Gazette specifying the countries in respect of which the Convention then has force for the Fiji Islands; and


(b) thereafter, as soon as practicable after -


(i) a country becomes, or ceases to be, a country in respect of which the Convention has force for the Fiji Islands; or


(ii) any reservations become applicable, or cease to be applicable, in relation to a country in respect of which the Convention has force for the Fiji Islands,


publish a replacement notice in the Gazette specifying -


(iii) the countries in respect of which the Convention then has force for the Fiji Islands; and


(iv) the countries in respect of which the Convention has ceased to have force for the Fiji Islands.


(3) A notice under subregulation (2) shall specify -


(a) in relation to each country mentioned in the notice as a country in respect of which the Convention has force for the Fiji Islands -


(i) the date on which it became a country in respect of which the Convention has force for the Fiji Islands; and


(ii) the reservations (if any) applicable to the Convention having force for the Fiji Islands in relation to that country; and


(b) in relation to each country mentioned in the notice as a country in respect of which the Convention has ceased to have force for the Fiji Islands -


(i) the date on which it became a country in respect of which the Convention has force for the Fiji Islands; and


(ii) the date on which it ceased to be a such country; and


(iii) the reservations (if any) that were applicable to the Convention having force for the Fiji islands in relation to that country; and


(4) A notice under subregulation (2) is for public information only, and neither the failure to publish such a notice nor any inaccuracy in such a notice shall affect the rights and obligations of any person under this Part or under the Convention.


Application for recovery of maintenance in convention countries

52.-(1) Where a person in the Fiji Islands claims -


(a) to be entitled under the law of a convention country -


(i) to recover maintenance from another person; or


(ii) to variation of an order made in that country for payment of maintenance by another person; and


(b) that that other person is subject to the jurisdiction of that country,


the first-mentioned person may apply to the CEO to have the claim transmitted to a Receiving Agency in that country.


(2) An application under subregulation (1) shall be accompanied by a photograph of the claimant and, if practicable, by a photograph of the person from whom maintenance is claimed.


(3) Unless the CEO is satisfied that a claim referred to in subregulation (1) for maintenance is not in accordance with the requirements of the Convention the CEO shall take on behalf of the claimant any action required to be taken by a Transmitting Agency under the Convention to recover the maintenance.


(4) Where a person who is a resident of the Fiji Islands is required, by an order to which the Convention applies, to pay maintenance to a claimant in a convention country, that person may apply under this regulation for the suspension or variation of that order as if the Fiji Islands were a convention country.


Applications by persons in convention countries for recovery of maintenance under Family Law Act

53.-(1) This regulation applies if -


(a) the CEO receives from a Transmitting Agency in a convention country an application for -


(i) recovery of maintenance that a person claims is required, under the Family Law Act, to be paid by another person; or


(ii) variation of an existing order for maintenance; and


(b) there are no reasonable grounds for believing that the other person is not subject to the jurisdiction of the courts of the Fiji Islands.


(2) The CEO may do anything required to be done on behalf of the claimant by a Receiving Agency under the Convention to recover the maintenance.


(3) Things that maybe done by the CEO do not include registration or enforcement of an order mentioned in, or sought by the application.


(4) However, a Fiji Islands court may, in proceedings under this Part, have regard to the application and the record of proceedings of a court that made any order to which the application relates.


This regulation does not affect the operation of Part VI of these Regulations.


Proceedings on behalf of persons in convention countries for recovery of maintenance

54.-(1)This regulation applies to proceedings under this Part in a court on behalf of a claimant.


(2) The court must proceed as if the claimant were before the court.


(3) The CEO may do anything that required or authorised to be done by an applicant in proceedings in that court in relation to maintenance.


(4) In any document to be filed in, or issued out of, the court, the CEO may be described as the Chief Executive Office of the Ministry of Justice acting on behalf of the claimant, whose name must be set out in the document.


Return of application

55.-(1) If, in relation to an application mentioned in regulation 54 (1) received from a Transmitting Agency in a convention country, a summons or other document that requires the other person mentioned in that subregulation to appear in proceedings under this Part cannot be served on the other person, the CEO must send to that Agency a statement giving whatever information the CEO has been able to obtain concerning the whereabouts of that other person and must return the application to that Agency.


(2) For the purposes of section 175 of the Act, the office of CEO is a prescribed office.


(3) Subregulation (2) does not limit the function of the CEO under this Part.


Certain requests to be made only with leave of court

56. Notwithstanding any other provision of these Regulations, in order to prevent proceedings under this Part from being unduly protracted a respondent must not seek, without leave of the court:


(a) a request for answers to interrogator;


(b) a request to make discovery of documents;


(c) a notice to produce documents; or


(d) a notice to admit facts or documents.


Payment of sums under orders of courts

57.-(1) Notwithstanding any other provision of these Regulations or the Rules of Courts, sums of money required to be paid by a person in the Fiji Islands under an order of a court in proceedings under this Part shall be paid to the court or to such person as the court directs.


(2) A court that receives under subregulation (1) a sum of money with respect to a claim for maintenance transmitted to the CEO by a Transmitting Agency in a convention country shall, as soon as practicable, remit the money to that Agency.


Taking of evidence at request of appropriate authority in convention countries

58.-(1)This regulation applies if the CEO receives a request from the appropriate authority to obtain evidence concerning specified matters about an application under the law of a convention country -


(a) to recover maintenance from another person; or


(b) to the variation of an order made in that country for payment of maintenance by another person;


where the person is subject to the jurisdiction of that country.


(2) The CEO and any court exercising jurisdiction under the Act must do anything required to be done under the Convention to obtain the evidence.


(3) When the evidence is obtained, the CEO must send a certified copy of a record of the evidence to the appropriate authority.


(4) If under subregulation (2), the CEO requests a court to take evidence for the proceedings mentioned in subregulation (1), the court must give notice of the time when, and the place where, the evidence is to be taken to -


(a) the CEO; and


(b) the person from whom the maintenance is claimed; and


(c) the appropriate authority.


(5) The notice must be sufficient, in the opinion of the court, to enable the parties to the proceedings to attend or be represented at the taking of the evidence.


(6) In this regulation, "appropriate authority", in relation to a request to obtain evidence for proceedings in a convention country, means -


(a) the Transmitting Agency for that country under the convention; or


(b) a court in that country.


Obtaining evidence in convention countries for purposes of proceedings under this Part

59.-(1) In proceedings under this Part in a court on behalf of a claimant in a convention country, the court may require the CEO to request the Transmitting Agency in the convention country to obtain evidence required for the proceedings.


(2) A requirement by a court under this regulation shall set out -


(a) the name and addresses of the claimant and respondent in the proceeding;


(b) the name and address of any person whose evidence is to be taken; and


(c) the notice concerning which evidence is required.


(3) The CEO shall transmit to the Transmitting Agency in the convention country a request that the CEO has been required under this regulation to make and shall request the Agency to give to the CEO and the respondent in the proceedings notice of the time when, and place where, the evidence is to betaken in order that the respondent may attend, or be represented at the taking of the evidence.


(4) Nothing in this regulation affects the power of a court to order or request the taking of evidence within or outside the Fiji Islands.


Admissibility of evidence given in convention countries

60. In a proceeding under this Part in a court, a statement contained in a document that purports -


(a) to set out or summarise evidence convention country and to have been signed by the person before whom the evidence was given;


(b) to set out or summarise evidence taken in a convention country for the purpose of a proceeding under this Part in a court (whether in response to a request made by the court or otherwise) and to have been signed by the evidence was taken; or


(c) to have been received as evidence in a proceeding in a court in a convention country and to have been signed by a judge or other officer of the court,


is admissible as evidence of any fact stated in the document to the same extent as oral evidence of that fact is admissible in the proceeding, without proof of the signature of the signed it or of the official position of that person.


Orders of courts in convention countries

61. In proceedings under this Part in a court, a document purporting to be an order or a copy of an order, of a court in a convention country and to have been signed by a judge or other officer of the court is admissible as evidence of that order without proof of the signature of the person purporting to have signed it or of the official position of that person.


PART VI - CHILD ABDUCTION CONVENTION


Division 1 - Preliminary


Purpose

62.-(1) The purpose of this Part is to give effect to section 200 of the Act.


(2) This Part is intended to be construed -


(a) having regard to the principles and objects mentioned in the preamble to and Article 1 of the Convent ion;


(b) recognising in accordance with the Convention, that the appropriate forum for resolving dispute between parents relating to a child's care, welfare and development is ordinarily the child's country of habitual residence; and


(c) recognising that the effective implementation of the Convention depend on the reciprocity and mutual respect between judicial or administrative authorities (as the case may be) of convention countries.


Interpretation

63.-(1) In this Part unless the contrary intention appears -


"Article 3 applicant" means a person, an institution or another body that has rights of custody in relation to a child for the purposes of the Convention and has made an application under regulation 71;


"Central Authority" has the meaning it has in the Convention;


"child" means a person who has not attained the age of 16 years;


"Convention" means the Convention on the Civil Aspects of International Child Abduction referred to in section 200 of the Act, a copy of the English text of which is set out in Schedule 4;


"convention country" means a country that under regulation 68 is a convention country;


"request" means a request made to the CEO, as Central Authority for the Fiji islands, for the purposes of Article 8 or 21 of the Convention;


"rights of access" include the right to take a child for a limited period of time to a place other than the child's habitual residence;


"rights of custody" has the meaning given in regulation 64.


(2) The removal or retention of a child is "wrongful" in the circumstances mentioned in Article 3 of the Convention.


(3) Unless the contrary intention appears, an expression that is used in this Part and in the Convention has the same meaning in this Part as in the Convention.


(4) A reference in this Part to a child who is removed -


(a) from the Fiji Islands to a convention country; or


(b) from a convention country to another convention country or to the Fiji Islands,


includes a reference to the removal of the child to the convention country concerned or to the Fiji Islands, as the case may be, whether or not the child is first removed to another country.


Meaning of "rights of custody"

64.-(1) For the purposes of this Part, a person, an institution or another body has rights of custody in relation to a child, if -


(a) the child was habitually resident in the Fiji Islands or in a convention country immediately before his or her removal or retention; and


(b) rights of custody in relation to the child are attributed to the person, institution or other body, either jointly or alone, under a law in force in the convention country in which the child habitually resided immediately before his or her removal or retention.


(2) For the purposes of subregulation (1), rights of custody include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child.


(3) For the purposes of this regulation, rights of custody may arise -


(a) by operation of law;


(b) by reason of a judicial or administrative decision; or


(c) by reason of an agreement having legal effect under a law in force in the Fiji Islands or a convention country.


Central Authority for the Fiji Islands

65.-(1) The duties, powers and functions of the Central Authority for the Fiji Islands under the Convention are conferred on the CEO.


(2) In addition to the other functions conferred on the CEO by this Part, the functions of the CEO are -


(a) to do, or co-ordinate the doing of, anything that is necessary to enable the performance of the obligations of the Fiji Islands, or to obtain for the Fiji Islands any advantage or benefit, under the Convention;


(b) to advise the Attorney-General, either on the initiative of the CEO or on a request made to the CEO by the Attorney-General, on all matters that concern, or arise out of performing, those obligations, including any need for additional legislation required for performing those obligations; and


(c) to do everything that is necessary or appropriate to give effect to the Convention in relation to the welfare of a child on the return of the child to the Fiji Islands.


(3) The CEO has all the duties, may exercise all the powers, and shall perform all the functions, that a Central Authority has under the Convention.


(4) The CEO must perform the functions, and exercise the powers, of a Central Authority as quickly as a proper consideration of each matter relating to the performance of a function or the exercise of a power allows.


This Part does not affect other powers of, or rights of application to a court

66.-(1) This Part is not intended to prevent a person, an institution or another body that has rights of custody in relation to a child for the purposes of the Convention from applying to a court if the child is removed to, or retained in, the Fiji Islands in breach of those rights.


(2) This Part is not to betaken as preventing a court from making an order at anytime, under Part VI of the Act or under any, other law in force in the Fiji islands for the return of a child to the country in which he or she habitually resided immediately before his or her removal or retention.


Immunity of CEO from orders to pay costs

67. The CEO shall not be made subject to any order to pay costs in relation to the exercise of the powers, or the performance of the functions, of the Central Authority for the Fiji Islands.


Convention countries

68.-(1) Subject to the Convention, each country in respect of which the Convention has entered into force for the Fiji Islands is a convention country for the purposes of this Part, subject to the reservations (if any) applicable to the Convention having force for the Fiji Islands in relation to that country.


(2) The CEO shall -


(a) as soon as practicable after the commencement of this Part, publish a notice in the Gazette specifying the countries in respect of which the Convention then has force for the Fiji Islands; and


(b) thereafter, as soon as practicable after -


(i) a country becomes, or ceases to be, a country in respect of which the Convention has force for the Fiji Islands; or


(ii) any reservations become applicable, or cease to be applicable, in relation to a country in respect of which the Convention has force for the Fiji Islands,


publish a replacement notice in the Gazette specifying -


(iii) the countries in respect of which the Convention then has force for the Fiji Islands; and


(iv) the countries in respect of which the Convention has ceased to have force for the Fiji Islands.


(3) A notice under subregulation (2) shall specify -


(a) in relation to each country mentioned in the notice as a country in respect of which the Convention has force for the Fiji Islands -


(i) the date on which it became a country in respect of which the Convention has force for the Fiji Islands; and


(ii) the reservations (if any) applicable to the Convention having force for the Fiji Islands in relation to that country; and


(b) in relation to each country mentioned in the notice as a country in respect of which the Convention has ceased to have force for the Fiji Islands -


(i) the date on which it became a country in respect of which the Convention had force for the Fiji Islands;


(ii) the date on which it ceased to be a such country; and


(i) the reservations (if any) that were applicable to the Convention having force for the Fiji Islands in relation to that country.


(4) A notice under subregulation (2) is for public information only, and neither the failure to publish such a notice nor any inaccuracy in such a notice shall affect the rights and obligations of any person under this Part or under the Convention.


Division 2 - Requests to central authorities, except for access


Request for return of child abducted from the Fiji Islands

69.-(1) If a person, an institution or another body claims under a law in force in the Fiji Islands to have rights of custody in relation to a child who, in breach of those rights, has been -


(a) removed from the Fiji Islands to a convention country; or


(b) retained in a convention country,


the person, institution or other body may send a request in writing to the CEO to have the claim transmitted to the Central Authority in the country to which the child has been removed or in which the child is retained.


(2) A request application under subregulation (1) must be in accordance with Form 5.


(3) Where the CEO is satisfied that an application made under subregulation (1) is in accordance with the requirements of the Convention, the CEO must, on behalf of the person, institution or other body making the request, take any action required to be taken by a Central Authority under the Convention.


Request for return of child abducted to the Fiji Islands

70.-(1) If the CEO -


(a) receives a request in relation to a child who has been removed from a convention country to the Fiji islands; and


(b) is satisfied that the request is in accordance with the Convention, the CEO must take action to secure the return of the child under the Convention.


(2) The CEO may refuse to accept a request if the CEO is not satisfied that the application is in accordance with the Convention.


(3) If the CEO refuses to accept a request, it must, as soon as practicable after doing so, inform the person, institution or other body, or the Central Authority, that made the request of the refusal and of the reason for the refusal.


(4) For the purposes of subregulation (1), the action taken by the CEO includes -


(a) seeking an amicable resolution of the differences between the applicant and the person opposing return of the child in relation to the removal or retention of the child;


(b) seeking the voluntary return of the child; and


(c) applying for an order under Division 3.


Division 3 - Court applications, except for access


Applications to court

71.-(1) if a child is removed from a convention country to, or retained in. the Fiji Islands, the CEO, or a person, an institution or another body that has rights of custody to relation to the child for the purposes of the Convention (an "Article 3 applicant"), may apply to the court, in accordance with Form 6, for any of the following orders:


(a) an order for the return of the child under the Convention;


(b) an order for the issue of a warrant mentioned in subregulation (4);


(c) an order directing that -


(i) the child not be removed from a specified place; and


(ii) members of the Fiji Police Force prevent the child being removed from that place;


(d) an order requiring that arrangements be made (as necessary) to place the child with an appropriate person, institution or other body to secure the welfare of the child, until a request under regulation 70 is determined;


(e) any other order that the responsible Central Authority considers appropriate, to give effect to the Convention.


(2) If a child is wrongfully removed from the Fiji Islands to, or retained in, a convention country, the CEO may apply to the court, in accordance with Form 6, for any of the following orders:


(a) an order for the issue of a warrant mentioned in subregulation (4);


(b) an order that the CEO considers necessary or appropriate to give effect to the Convention in relation to the welfare of the child after his or her return to the Fiji Islands;


(c) any other order that the CEO considers appropriate to give effect to the Convention.


(3) If a copy of an application under this regulation is served on a person -


(a) the person must file an answer, or an answer and a cross-application, in accordance with Form 7; and


(b) the applicant may file a reply in accordance with Form 8.


(4) For the purposes of subregulations (1) (b) and (2) (a), a warrant -


(a) is a warrant that authorises a person named or described in the warrant, with such assistance as is necessary and reasonable, and, if necessary and reasonable, by force -


(i) to find and recover the child; and


(ii) if that person reasonably believes that the child is in, or on, a vehicle, vessel, aircraft or premises, and the circumstances are so serious and urgent as to justify the entry and search under the warrant -


(A) to stop, enter and search the vehicle, vessel or aircraft; or


(B) to enter and search the premises; and


(iii) to deliver the child to the person named in the warrant; and


(b) must be in accordance with Form 9.


Orders

72.-(1) If a court is satisfied that it is desirable to do so, the court may, in relation to an application made under regulation 71 -


(a) make an order of a kind mentioned in that regulation;


(b) make any other order that the court considers to be appropriate to give effect to the Convention; and


(c) include in air order to which paragraph (a) or (b) applies a condition that the court considers to be appropriate to give effect to the Convention.


(2) A court must, so far as practicable, give to an application such priority as will ensure that the application is dealt with as quickly as a proper consideration of each matter relating to the application allows.


(3) If a court is satisfied that there is an appreciable possibility or a threat that a child will be removed from the Fiji Islands, the court may order the delivery of the passport of the child, and of any other relevant person, to the CEO, a member of the Fiji Police Force, or such other person as the court considers appropriate, on such conditions as the court considers to be appropriate to give effect to the Convention.


(4) If an application made under regulation 71 is not determined by a court within the period of 42 days commencing on the day on which the application is made -


(a) the CEO or Article 3 applicant may request the Registrar of the court to state in writing the reasons for the application not having been determined within that period; and


(b) as soon as practicable after a request is made the Registrar must give the statement to the CEO or Article 3 applicant.


Order for the return of child removed to, or retained in the Fiji Islands

73.-(1) If -


(a) an application is made to a court under regulation 71 (1) for an order for the return of a child who has been removed to, or retained in, the Fiji Islands:


(b) the application is made within one year of the child's removal or retention; and


(c) the CEO or Article 3 applicant satisfies the court that the child's removal or retention was wrongful under subregulation (2),


the court must, subject to subregulation (4), make the order.


(2) For the purposes of subregulation (1), a child's removal to, or retention in the Fiji Islands is wrongful if -


(a) the child was under 16;


(b) the child habitually resided in a convention country immediately before the child's removal to, or retention in the Fiji Islands;


(c) the person, institution or other body seeking the child's return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child's removal to, or retention in, the Fiji Islands;


(d) the child's removal to, or retention in the Fiji Islands is in breach of those rights of custody; and


(e) at the time of the child's removal or retention, the person, institution or other body -


(i) was actually exercising the rights of custody (either jointly or alone); or


(ii) would have exercised those rights the child had not been removed or retained.


(3) If -


(a) an application is made to a court under regulation 71 (1) for an order for the return of a child who has been removed to, or retained in, the Fiji Islands;


(b) the application for the return of the child is made more than one year after the day on which the child was first removed to, or retained in, the Fiji Islands; and


(c) the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment.


(4) A court may refuse to make an order under subregulation (1) or (3) if a person opposing return establishes that -


(a) the person, institution or other body seeking the child's return -


(i) was not actually exercising rights of custody when the child was removed to, or first retained in, the Fiji Islands and those rights would not have been exercised if the child had not been so removed or retained; or


(ii) had consented or subsequently acquiesced in the child being removed to, or retained in, the Fiji Islands;


(b) there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation;


(c) each of the following applies:


(i) the child objects to being returned;


(ii) the child's objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;


(iii) the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or


(d) the return of the child would not be permitted by the fundamental principles of the Fiji Islands relating to the protection of human rights and fundamental freedoms.


(5) For the purposes of subregulation (4), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention.


(6) The court to which an application for the return of a child is made is not precluded from making an order for the return of a child to the country in which he or she habitually resided immediately before his or her removal or retention only because a matter mentioned in subregulation (4) is established by a party opposing return.


Declaration that removal or retention was wrongful

74.-(1) On application, a court may by order declare that -


(a) the removal of a child from the Fiji islands to a convention country; or


(b) the retention of a child in a convention country, was wrongful within the meaning of Article 3 of the Convention.


(2) The court may request the CEO to arrange for the person, institution or other body making a request in relation to the return of a child to a convention country to obtain an order of a court, or a decision of a competent authority, of the country in which the child habitually resided immediately before his or her removal or retention declaring that the removal or retention was wrongful within the meaning of Article 3 of the Convention.


Effect of other custody orders in the Fiji Islands or overseas

75.-(1) The following rules apply to the hearing of an application made under regulation
731 (1):


(a) the court must not refuse to make an order for the return of the child under the Convention only because there is in force or enforceable in the Fiji Islands an order relating to the custody of the child;


(b) the court may take into account the reasons for the making of any order relating to the custody of the child;


(c) an order for the return of the child does not determine the merits of any custody issue in relation to the child.


(2) In this regulation, "custody", in relation to a child, includes -


(a) guardianship of the child;


(b) responsibility for long-term, or day-to-day, care, welfare and development of the child; and


(c) responsibility as the person or persons with whom the child is to live.


When a court not to wake certain orders

76. If an application for the return of a child is made, a court must not make an order, except an interim order, providing for the custody of the child, within the meaning of regulation 635, until the application is determined.


Discharge of return order

77.-(1) If a court makes an order under this Division for the return of a child (a "return order"), the CEO or a respondent to the proceeding may apply to the court, in accordance with Form 10, for the discharge of the order.


(2) The court must not make an order discharging a return order, or a part of a return order, unless it is satisfied of all of the following:


(a) all the parties consent to the return order being discharged;


(b) since the return order was made, circumstances have arisen that make it impractical for the order to be carried out;


(c) exceptional circumstances exist that justify the return order being discharged;


(d) the day on which the application for the discharge of the return order was made is more than 2 years after the return order was made or any appeal in relation to the return order was determined.


Arrangements for return of child

78.-(1) If the CEO applies to the court for an order for the return of a child, and the order is made, the CEO must cause such arrangements as are necessary to be made to give effect to the order.


(2) If -


(a) an order is made under regulation 73; and


(b) within days after the order is made, the CEO or Article 3 applicant has not been notified that the order has been stayed,


the child must be returned in accordance with the order.


Security for costs etc

79. The CEO or a court, as the case may be, shall not require any security or bond for the payment of costs or expenses of or incidental to proceedings falling within the scope of the Convention.


Division 4 - Applications and requests in relation to access


Request for access to child in convention country

80.-(1) If a person, an institution or another body claims under a law in force in the Fiji Islands to have rights of access to a child in a convention country, the person, institution or other body may send a request to the CEO, in accordance with Form 11, to have arrangements made for establishing, organising or securing the effective exercise of those rights in that convention country.


(2) If the CEO is satisfied that the request is a request to which the Convention applies and is in accordance with the requirements of the Convention, the CEO must take steps to enable the performance of the obligations of the Fiji Islands under Article 21 of the Convention.


(3) The CEO may refuse to accept a request if the CEO is satisfied that the request is not in accordance with the Convention.


(4) If the CEO refuses to accept a request, the CEO must, as soon as practicable after doing so, inform the person, institution or other body, or the Central Authority that made the request of the refusal and of the reason for the refusal.


Request and application for access to child in the Fiji Islands

81.-(1) If a person, an institution or another body claims to have rights of access to a child in the Fiji Islands under a law in force in a convention country, the person, institution or other body may send a request to the CEO to have arrangements made for establishing, organising or securing the effective exercise of those rights in the Fiji Islands.


(2) If the CEO is satisfied that a request is in accordance with the requirements of the Convention and this Part, the CEO may apply to a court, in accordance with Form 12, for an order under subregulation (4) that is necessary or appropriate to establish, organise or secure the effective exercise of the rights of access to which the application relates.


(3) If the CEO is not satisfied that a request is in accordance with the requirements of the Convention and this Part, the CEO -


(a) may refuse to accept the request; and


(b) must, as soon as practicable, inform the Central Authority of the convention country through which the request was made of the refusal and the reasons for the refusal.


(4) An application to a court by the CEO under subregulation (2) may seek any of the following orders:


(a) an order for contact between the child and a person (or persons);


(b) an order for the issue of a warrant mentioned in subregulation (8);


(c) any other order that the CEO considers appropriate to give effect to the Convention.


(5) If an application is made under subregulation (2) -


(a) a person on whom a copy of the application is served must file an answer, or an answer and cross-application, in accordance with Form 13; and


(b) the CEO may file a reply in accordance with Form 14.


(6) The court may make -


(a) the order or orders sought in the application; or


(b) any other order that the court considers appropriate to give effect to the Convention.


(7) The court may make an order under subregulation (6) regardless of -


(a) whether an order or determination (however described) has been made under a law in force in another convention country about rights of access to the child concerned;


(b) if the child was removed to the Fiji Islands, when that happened; or


(c) whether the child has been wrongfully removed to, or retained in, the Fiji Islands.


(8) For the purposes of subregulation (4) (b), a warrant -


(a) is a warrant that authorises a person named or described in the warrant, with such assistance as is necessary and reasonable, and, if necessary and reasonable, by force -


(i) to find and recover the child; and


(ii) if that person reasonably believes that the child is in, or on, a vehicle, vessel, aircraft or premises, and the circumstances are so serious and urgent as to justify the entry and search under the warrant -


(A) to stop, enter and search the vehicle, vessel or aircraft; or


(B) to enter and search the premises; and


(iii) to deliver the child to the person named in the warrant; and


(b) must be made in accordance with Form 9.


(9) Nothing in this regulation prevents the CEO from seeking an amicable resolution under Article 7 or the Convention in relation to the rights of access to the child.


Division 5 - General


Reports by family and child counsellors and welfare officers


82.-(l) in proceedings under this Part in a court, the court may -


(a) direct a family and child counsellor or welfare officer to report to the court on such matters that are relevant to the proceedings as the court considers to be appropriate; and


(b) adjourn the proceedings until the report is made.


(2) A family and child counsellor or welfare officer may include in a report, in addition to the matters required to be included in the report, any other matter that relates to the welfare of the child.


(3) The court may make such orders, or give such further directions, as it considers appropriate in relation to the preparation of the report including, if the court considers it appropriate, orders or directions in relation to the attendance on the family and child counsellor or welfare officer of a party to the proceedings or of the child.


(4) If a person fails to comply with any order or direction under subregulation (3), the family and child counsellor or welfare officer must report the failure to the court.


(5) if, under subregulation (4), a family and child counsellor or welfare officer reports to the court a failure of the kind referred to in that subregulation, the court may give such further directions in relation to the preparation of the report as the court considers appropriate.


(6) A report made to the court in accordance with a direction given under this regulation may be received in evidence in any proceedings under this Part.


(7) The court may direct the CEO to inform a Central Authority in a convention country about a matter that -


(a) relates to the welfare of the child; and


(b) under subregulation (2), is included in a report.


Service of notice of certain applications

83.-(1) Subject to subregulation (2), notice of an application under regulation 71, 77 or 8l that includes a copy of the application must be served by the applicant in accordance with the Rules of Court on -


(a) in the case of an application under regulation 71 (in relation to wrongful removal or retention) - on the person (or persons) who the applicant claims has (or have) wrongfully removed or retained the child who is the subject of the application;


(b) in the case of an application under regulation 77 (for discharge of an order for the return of a child) - on any other party to the proceeding for return of the child; and


(c) in the case of an application under regulation 81 (for access to a child in the Fiji Islands) - on the person, institution or other body in possession of the child who is the subject of the application.


(2) The court to which an application referred to in subregulation (1) is made may, in accordance with the Rules of Court, dispense with service of notice of the application under that subregulation.


Evidentiary provisions

84.-(1)This regulation applies in a proceeding in a court under regulation 71, 77 or 81 in which the applicant is the CEO.


(2) The application under regulation 71, 77 or 81, or a request under regulation 70, 80 or 81 relating to that application, or any document attached to or given in support of that application or request, is admissible as evidence of the facts stated in that application, request or document.


(3) An affidavit of a witness who resides outside the Fiji Islands that is filed in the proceeding is admissible as evidence even if the witness does not attend the proceeding for cross-examination.


(4) A statement contained in a document that purports -


(a) to set out or summarise evidence given in a proceeding in a court in a convention country, or before a competent authority of that country, in relation to the custody of a child and to have been signed by the person before whom the evidence was given;


(b) to set out or summarise evidence taken in a convention country for the purpose of a proceeding under this Part (whether in response to a request :made by the court or otherwise) and to have been signed by the person before whom the evidence was taken; or


(c) to have been received as evidence in a proceeding in a court in a convention country or before a competent authority of that country in relation to the custody of a child and to have been signed by a judge, an officer of the court or that authority,


is admissible as evidence of any fact stated in the document to the same extent as oral evidence of that fact, without proof of that person's signature or official position.


(5) The court may take judicial notice of the following matters:


(a) a law in force in a convention country;


(b) a decision of a judicial or administrative character made by a judicial or administrative authority of a convention country.


(6) A document that purports -


(a) to bean order, or a copy of an order, of a court in a convention country, or a decision of a competent authority of that country, in relation to the custody of a child; and


(b) to have been signed by a judge, an officer of the court or that authority,


is admissible as evidence of that order or decision without proof of that person's signature or official position.


(7) In this regulation, "custody", in relation to a child, includes -


(a) guardianship of the child;


(b) responsibility for the long-term or day-to-day care, welfare and development of the child; and


(c) responsibility as the person or persons with whom the child is to live.


Costs of application

85.-(1) If -


(a) either -


(i) the CEO has applied to the court for an order in relation to a child under Division 3 or 4; or


(ii) an Article 3 applicant has applied to the court for an order in relation to a child under Division 3; and


(b) the court makes an order under regulation 72, 74, 77, 81 or 83; and


(c) the CEO or Article 3 applicant applies to the court under this regulation,


the court may make an order that the person who removed or retained the child, or who prevented the exercise of rights of access to the child, must pay to the CEO or the Article 3 applicant the costs of the application.


(2) In this regulation, "costs of the application" -


(a) means the necessary expenses incurred -


(i) by or on behalf of the person, institution or other body on whose behalf the CEO made the application; or


(ii) by the Article 3 applicant; and


(b) may include any of the following:


(i) travelling expenses;


(ii) costs incurred in locating the child;


(iii) costs of legal representation;


(iv) expenses incurred in returning the child;


(v) costs incurred in relation to the attendance by the child or an interested party before a family and child counsellor or a welfare officer for the preparation of a report by that counsellor or officer.


______


SCHEDULE 1
(Regulation 2(2))


FORM 1
(Regulation 9)


FAMILY LAW ACT 2003


IN THE FAMILY DIVISION OF THE *HIGH/* MAGISTRATES' COURT

AT [place]
No.


BETWEEN:
[Full name (including father's name, where necessary for identification; surname (if any) underlined], Applicant
AND
[Full name (including father's name, where necessary for identification; surname (if any) underlined)], Respondent
[Where there are any other parties to the proceedings, include for each:
AND
[Full name (including father's name, where necessary for identification; surname (if any) underlined)], [Description, e.g. Intervener] ]


REQUEST FOR SERVICE ABROAD


TO THE REGISTRAR:


I hereby request that a sealed copy of the attached [description of document to be served] in these proceedings be transmitted through the proper channel to [name of country] for service personally on [full name (including father's name, where necessary for identification; surname (if any) underlined)], the [description of party, e.g. respondent], at [place], or elsewhere in that country, in accordance with the Convention with that country relating to Legal Proceedings in Civil and Commercial Matters.


I hereby undertake to be responsible personally for all expenses incurred by the Fiji Islands Government in respect of the service hereby requested, and on receiving due notification of the amount of those expenses I undertake to pay the amount of the expenses to the Ministry of Finance at Suva and to produce the receipt for payment to the Registrar.


Dated:


Applicant/Solicitor for the [description of party
by or on whose behalf the request is made]


"Omit whichever is not applicable.


______


FORM 2
(Regulation 21 (1))


REPUBLIC OF THE FIJI ISLANDS - FAMILY LAW ACT 2003


PARENTAGE TESTING PROCEDURE - AFFIDAVIT BY/IN RELATION TO DONOR



Name of child whose parentage is in issue


Name of donor


Date of birth of donor


*Relationship/*putative relationship of donor to child whose parentage is in issue


Date of collection of sample from donor


I, [full name (including father's name, where necessary for identification; surname (if any) underlined)] of [residential address], [occupation], *swear/*affirm:


l. I am * the abovementioned donor.

* the [state relationship or other status in relation to the donor] of the abovementioned donor, [name], who was born on [date].


2. The donor is a person whose racial background is: [insert details]


3. In the last 2 years:


(a) the donor *has/*has not suffered from leukaemia;


(b) the donor *has/*has not received a bone marrow transplant.


*4. The particulars of the *leukaemia/*bone marrow transplant are as follows: [Insert particulars]


5. The donor *has/*has not received a transfusion of blood or a blood product within the last 6 months.


*6. The particulars of the transfusion of blood or blood product are as follows: [Insert Particulars]


*SWORN/*AFFIRMED by the
deponent at ...................... [place]


on [date]

[Signature of deponent]


BEFORE ME: [name and title of person
before whom the affidavit is sworn
or affirmed]


[Signature of person
before whom affidavit is
sworn or affirmed]


*Omit whichever is not applicable,


______


FORM 3
(Regulation 25)


REPUBLIC OF THE FIJI ISLANDS - FAMILY LAW ACT 2003


PARENTAGE TESTING PROCEDURE - COLLECTION OF BODILY FAMILIES


Name of child whose parentage is in issue


1. [full name (including father's name, where necessary for identification; surname (if any) underlined)] of [professional address], [occupation], took the bodily sample(s) specified below at [time] *am/*pm on [date] at [place of collection] from the following person:


Donor particulars
Full name (including father's name, if necessary for identification; surname (if any) underlined):

Date of birth:

[Affix photograph of donor]
Samples taken:


2. When I took the bodily sample(s) specified above, I strictly observed the procedures provided under Part III of the Family Law Regulations 2005.


3. I placed each of the bodily sample(s) specified above in a container that was immediately sealed and then labelled in accordance with regulation 24 of the Family Law Regulations 2005.


Dated:


[Signature of sampler]

*Omit whichever is not applicable.


______


FORM 4
(Regulation 28)


REPUBLIC OF THE FIJI ISLANDS - FAMILY LAW ACT 2003


PARENTAGE TESTING PROCEDURE REPORT


Name of child whose parentage is in issue


PART 1


1. [full name of nominated reporter (including father's name, where necessary for identification; surname (if any) underlined)] of [street address of laboratory where testing was performed], am a person nominated by the laboratory specified below to prepare reports relating to parentage testing undertaken in that laboratory.


2. I report that *a parentage testing procedure/*parentage testing procedures being:


*(a) red cell antigen blood grouping;

*(b) red cell enzyme blood grouping;

*(c) testing for serum markers;

*(d) HLA tissue typing;

*(d) DNA typing;


*has/*have been carried out on the bodily *sample/*samples contained in the sealed *container/*containers bearing the *name/*names of the following *donor/*donors:


(a) [donor's name, date of birth and relationship to child whose parentage is in issue];


*(b) [donor's name, date of birth and relationship to child whose parentage is in issue];


*(c) [donor's name, date of birth and relationship to child whose parentage is in issue];


*(d) [donor's name, date of birth and relationship to child whose parentage is in issue].


3. Each bodily sample referred to in item 2 is the same bodily sample as the bodily sample specified in the statement completed on [date] by [name of sampler] in accordance with Form 3 in Schedule 1 of the Family Law Regulations 2005 in relation to the respective donor.


4. The parentage testing *procedure was/*procedures were carried out at [name and street address of laboratory where testing was performed] on [date(s)].


5. The results of the parentage testing *procedure/*procedures are set out in Part 2 of this report.


*6. I report that the results of the parentage testing *procedure/*procedures carried out on the bodily *sample/*samples of the donor(s) specified above show that [name of putative parent] is not excluded from identification as the *father/*mother of [name of child whose parentage is in issue].


[OR]

*6. I report the results of the parentage testing *procedure/*procedures carried out on the bodily *sample/*samples of the donors specified above show that [name of putative parent] is excluded from identification as the *father/*mother of [name of child whose parentage is in issue].


*7. I further report that the probability that [name of putative parent] is the genetic *father/*mother of [name of child whose parentage is in issue] has been calculated as follows:


Putative *father/*mother is [insert figure] times more likely to produce a child with the required alleles than a *man/*woman drawn randomly from the general population. This equates to a Relative Chance of *Paternity/*Maternity of [insert figure].


[OR]

*7. I further report that the exclusion is based on contradictions of the laws of genetic inheritance in [insert amount] of the [insert amount] genetic markers: [insert the names of the genetic markers and whether the contradictions are of the first or second order].


*8. I further report [if necessary, provide further explanation of results detailed in item 6 or 7, or both].


Dated:

[Signature of nominated reporter]


PART 2


1. The bodily *sample/*samples referred to in Part I of this report *was/*were received at [name and street address of laboratory at which parentage testing *procedure was/*procedures were carried out] on the following date(s):


(a [specify sample] - [date];

*(b) [specify sample] - [date];

*(c) [specify sample] - [date];

*(d) [specify sample] - [date];

*(e) [specify sample] - [date].


2. The following identification *number was/*numbers were allocated respectively to the bodily *sample/*samples in the *container/*containers in respect of which the parentage testing *procedure was/*procedures were carried out:


(a) [name of donor arid identification number];

*(b) [name of donor and identification number];

*(c) [name of donor arid identification number];

*(d) [name of donor and identification number].


3. The results obtained from the parentage testing *procedure/*procedures are: [set out the results].


*4. [Item applying if parentage testing procedure carried out was red cell antigen blood grouping, red cell enzyme blood grouping, HLA tissue typing or testing for serum markers:] The results set out above in item 3 refer to the parentage testing *procedure/* procedures carried out *by me/*under my supervision on [date(s)]. The bodily *sample was/*samples were tested with the same reagents and in parallel with appropriate known controls. Results from controls show that all reagents were of correct specificity and normal potency. I am satisfied that the results obtained are true and that they have been correctly transcribed from the laboratory records.


[OR]


*4. [Item applying if parentage testing procedure carried out was DNA typing:] The results set out above in item 3 refer to the parentage testing *procedure/*procedures carried out *by me/*under my supervision on [date(s)]. The bodily *sample was/*samples tested with the same probes/primers and in parallel with appropriate known controls. Fragment length and/or hybridisation patterns were in accordance with scientifically accepted standards. I am satisfied that the results obtained have been correctly ended from the fragment and/or hybridisation pattern and that they have been correctly transcribed from the laboratory retards.


Dated:


[Signature of person by or under whose supervision
parentage testing procedure was carried out]


*Omit whichever is not applicable.


______


FORM 5
(Regulation 69 (1))


REPUBLIC OF THE FIJI ISLANDS - FAMILY LAW ACT 2003


REQUEST IN ACCORDANCE WITH THE HAGUE; CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION FOR THE RETURN OF A CHILD ABDUCTED FROM THE FIJI ISLANDS


REQUESTING CENTRAL AUTHORITY OR APPLICANT:
REQUESTED CENTRAL AUTHORITY:

This request concerns the child identified in item 1 below, who will attain the age of 16 on [date]


NOTE: The following particulars should be completed so far as is possible.


I - IDENTITY OF THE CHILD AND ITS PARENTS


1. Child



Full name (including father's name ("f/n"), if necessary for identification; surname (if any) underlined)


Date and place of birth


Habitual residence before removal or retention


Passport or identity card No., if any


Description
[NOTE: If possible a photograph of the child, endorsed with the child's name, should attached, and listed in Part IX.]


2. Parents



2.1 Mother
Full name [including father's name ("f/n"), if necessary for identification; surname (if any) underlined)


Date ad place of birth


Nationality


Occupation


Habitual residence


Passport or identity card No., if any


2.2 Father
Full name (including father's name ("f/n"), if necessary for identification; surname (if any) underlined)


Date and place of birth


Nationality


Occupation


Habitual residence


Passport or identity card No., if any


II - REQUESTING INDIVIDUAL OR INSTITUTION (who actually exercised custody before the removal or retention)


3. Full name (including father's name ("f/n"), if necessary for identification; surname (if any) underlined)


Nationality of individual applicant


Occupation of individual applicant


Address


Passport or identity card No., if any


Relationship to the child


Name and address of legal adviser, if any


III - PLACE WHERE THE CHILD IS THOUGHT TO BE


4.1 Information concerning the person alleged to have removed or retained the child



Full name (including father's name ("f/n"), if necessary for identification; surname (if any) underlined)


Date and place of birth, if known


Nationality, if known


Occupation


Last known address


Passport or identity card No., if any


Description
[Note: If possible, a photograph of the person alleged to have removed or retained the child, endorsed with the person's name, should be attached, and listed in Part IX.]


4.2 Address of the child


4.3 Other persons who might be able to supply additional information relating to the whereabouts of the child:


IV - TIME, PLACE, DATE AND CIRCUMSTANCES OF THE WRONGFUL REMOVAL OR RETENTION


V - FACTUAL OR LEGAL GROUNDS JUSTIFYING THE REQUEST


VI - CIVIL PROCEEDINGS IN PROGRESS


VII - RETURN OF CHILD


(a) Person to whom child is to be returned



Full name (including father's name ("f/n"), if necessary for identification; surname (if any) underlined)


Date and place of birth


Address


Telephone number


(b) Proposed arrangements for return of the child:


VIII - OTHER REMARKS


IX - LIST OF DOCUMENTS ATTACHED ( e.g. certified coy of relevant decision or agreement concerning rights of custody or rights of access; certificate or affidavit as to the applicable law; information relating to the social background of the child; authorization empowering the Central Authority to act on behalf of applicant, photographs mentioned above):


I authorise the requested Central Authority and its agents to act on my behalf and to do all things reasonable and necessary in connection with this application.


Date:

Place:


[Signature and/or stamp of the requesting Central Authority or applicant]


______


FORM 6
(Regulations 71 (1) and (2))


FAMILY LAW ACT 2005


IN THE FAMILY DIVISION OF THE *HIGH/*MAGISTRATES' COURT
AT [place]
No.


BETWEEN:
[Full name (including father's name, where necessary for identification; surname (if any) underlined], Applicant
AND
[Full name (including father's name, where necessary far identification; surname (if any) underlined)], Respondent


APPLICATION INITIATING PROCEEDINGS UNDER DIVISION 3 OF PART VI OF THE FAMILY LAW REGULATIONS


Date of filing:


Applicant's address for service:


NOTICE TO RESPONDENT
[For completion by registrar after filing of the following Application]


To the abovenamed Respondent


TAKE NOTICE that the attached application HAS BEEN SET DOWN FOR HEARING by the Court at [place] ...................... on [date] ...................... at [time]


AND FURTHER TAKE NOTICE THAT -


(a) if you wish to defend this application but to raise no new issues, you may, at the earliest practicable date before the return day set out above, file and serve an affidavit setting out briefly the matters on which you rely;


(b) if you wish to defend this application and to seek some order other than the order sought in this application, you may, at the earliest practicable date before the return day set out above, file and serve a cross-application and an affidavit in support; and


(c) if you do not appear at the hearing, the Court may proceed to make the orders sought, or similar orders, in your absence.


Dated

............................
Registrar.


APPLICATION


The applicant, [full name (including father's name if necessary for identification; surname (if any) underlined] of [residential address], [occupation], applies for the following orders:


[Specify each order sought in a separate paragraph, lettered (a), (b), etc.]


Details concerning child
1. The child, [full name], was born on [date].


2. The habitual residence of the child immediately prior to the removal or retention of the child was [place] in [country], a convention country.


3. The child has been wrongfully removed or retained from the country referred to in paragraph 2.


4. The child is now residing with [full name], [relationship, if any, to child], at [address].


Details concerning child's custodian
5. The applicant under the Convention, [full name], [relationship, if any, to child], of [address], has rights of custody in respect of the child by reason of the following factual and legal circumstances: [include details of any custody order]


Details concerning child's removal or retention
6. The child was removed or retained on [date] in the following circumstances:


Pending proceedings in the Fiji Islands
*7. The following are particulars of pending family law or child welfare proceedings concerning the child: [Set out brief particulars of any pending proceedings and the court in which the proceedings are pending]:


or

*7. There are no pending family law or child welfare proceedings concerning the child.


Attachments
8. The request for return of the child under the Convention is attached.


9. The following documents are also attached:


*(a) certified copy of relevant decision or agreement concerning rights of custody or rights of access;


*(b) certificate or affidavit as to the applicable law;


*(c) information relating to the social background of the child;


*(e) authorization empowering the Central Authority to act on behalf of the applicant;


*(f) other [specify].


Date:

[Signature of applicant]


AFFIDAVIT


I, [full name, address and occupation] *swear/*affirm:


1. 1 am the applicant in, and I have read, this application.


2. The facts stated in this application that are within my personal knowledge are true. All other facts stated in this application are true to the best of my knowledge, information and belief.


*SWORN/*AFFIRMED by the


applicant at ...................... [place]
on ............................... [date]


[Signature of applicant]


BEFORE ME: [name and title of person
before whom the affidavit is sworn
or affirmed]


[Signature of person
before whom affidavit is
sworn or affirmed]

* Omit whichever is not applicable.


______


FORM 7
(Regulation 71 (3))


FAMILY LAW ACT 2003


IN THE FAMILY DIVISION OF THE *HIGH/*MAGISTRATES' COURT
AT [place]
No.


BETWEEN:
[Full name (including father's name, where necessary for identification; surname (if any) underlined], Applicant
AND
[Full name (including father's name, where necessary for identification; surname (if any) underlined)], Respondent


ANSWER [*AND CROSS APPLICATION] UNDER DIVISION 3
OF PART VI OF THE FAMILY LAW REGULATIONS


ANSWER


In answer to the application filed on [date] and served on [date], the respondent states that [Set out matters to be pleaded in numbered paragraphs]:


[*CROSS APPLICATION

The abovenamed respondent, whose occupation is [specify], applies for the following orders:


[Specify each order sought in a separate paragraph, lettered (a), (b), etc.]


Details concerning child
1. The child, [full name], was born on [date].
2. The child is now residing with [full name], [relationship, if any, to child] at, [address].


Details concerning respondent's rights to custody/access
3. The respondent, whose address is [specify] and whose relationship to child is [specify], has rights of *custody/*access in respect of the child by reason of the following factual and legal circumstances [include details of any custody/access order]:


Pending proceedings in the Fiji Islands
4. The following are particulars of pending family law or child welfare proceedings concerning the child [Set out brief particulars of any pending proceedings and the court in which the proceedings are pending]:


Attachments

5. The following documents are also attached:


*(a) certified copy of relevant decisions or agreement concerning rights of custody or rights of access;


*(b) information relating to the social background of the child;


*(c) other [specify].]


AFFIDAVIT

I, [full name, address and occupation of respondent], *swear/*affirm:


1. I am the respondent in these proceedings, and I have read the answer [*and cross application] set out above.


2. The facts stated in the answer [*and cross application] that are within my personal knowledge are true. All other facts stated in the answer [*and cross application] are true to the best of my personal knowledge, information and belief.


*SWORN/*AFFIRMED by the
respondent at ............................... [place]
on ................................ [date]


[Signature of re[*SWORN/*AFFIRMED by the
applicant at ....................... [place]
on ......................... [date]


[Signature of respondent]


BEFORE ME: [name and title of person
before whom the affidavit is sworn
or affirmed]


[Signature of person
before whom affidavit is
sworn or affirmed]

ent]


BEFORE ME: [name and title of person
before whom the affidavit is sworn
or affirmed]


[Signature of person
before whom affidavit is
sworn or affirmed]


*Omit whichever is not applicable.


______


FORM 8
(Regulation 71 (4))


FAMILY LAW ACT 2003


IN THE FAMILY DIVISION OF THE *HIGH/*MAGISTRATES' COURT
AT [place]
No.


BETWEEN:
[Full name (including father's name, where necessary for identification; surname (if any) underlined], Applicant


AND
[Full name (including father's name, where necessary for identification; surname (if any) underlined)], Respondent


REPLY TO ANSWER [*AND CROSS APPLICATION] UNDER DIVISION 3
OF PART VI OF THE FAMILY LAW REGULATIONS


In reply to the answer [*and cross application] filed on [date] and served on [date], the applicant states [Set out matters in reply to answer/cross application]:


l. ................................................................................................
2. ................................................................................................


AFFIDAVIT


I, [full name, address and occupation], *swear/*affirm:


1. I am the applicant in these proceedings and I have read this reply.


2. The facts stated in this reply that are within my personal knowledge are true. All other facts stated in this reply are true to the best of my knowledge, information and belief.


*SWORN/*AFFIRMED by the
applicant at ................... [place]
on ....................... [date]


[Signature of applicant]


BEFORE ME: [name and title of person
before whom the affidavit is sworn
or affirmed]


[Signature of person
before whom affidavit is
sworn or affirmed]

*Omit whichever is not applicable.


______


FORM 9
(Regulations 71 (5) and 81 (6))


FAMILY LAW ACT 2003


WARRANT FOR THE APPREHENSION OR DETENTION OF A CHILD



File No:

Applicant:

At:

Respondent:

TO:

*The Sheriff
*All Officers of the Fiji Police Force

In compliance with the order of the Court dated [date] under *regulation 71 (1)/*regulation 71 (2)/*regulation 81 (6) of the Family Law Regulations 2005, and on the application of [name of applicant], THIS WARRANT DIRECT THAT:


1. You are authorised, with such assistance as is necessary and reasonable, and, if necessary and reasonable, by force, to find and recover the child [name of child] born on [date of child's birth].


2. You are required to deliver the child to [name and address of person or agency to whom the child is to be delivered].


3. If the circumstances of the child's removal or retention are so serious or urgent as to justify search and entry of a vehicle, vessel, aircraft or premises, you are authorised, with such assistance as is necessary and reasonable, and, if necessary and reasonable, by force, to stop, enter and search any vehicle, vessel or aircraft, and to enter and search any premises, that you reasonably believe the child is in or on.


*4. This warrant remains in force until [date].


DATED:


By the Court


Registrar


*Omit whichever is not applicable


______


FORM 10
(Regulation 77 (1))


FAMILY LAW ACT 2003


IN THE FAMILY DIVISION OF THE *HIGH/*MAGISTRATES' COURT
AT [place]
No.


BETWEEN:
[Full name (including father's name, where necessary for identification; surname (if any) underlined], Applicant
AND
[Full name (including father's name, where necessary for identification; surname (if any) underlined)], Respondent


APPLICATION TO DISCHARGE RETURN ORDER


Details concerning child
1. The child, [full name], was born on [date].


2. The habitual residence of the child immediately before the removal or retention of the child was [place] in [country], a convention country.


3. The child is now residing with [full name], [relationship, if any, to child], at [address].


Details concern fig child's custodian
4. The applicant under the Convention, [full name], [relationship, if any, to child], of [address], has rights of custody in respect of the child by reason of the following factual and legal circumstances: [Include details of any custody order]


Details concerning child's removal or retention
5. The child was removed or retained on [date], in the following circumstances:


Judicial proceedings in the Fiji Islands
*6. The following are particulars of any pending family law or child welfare proceedings concerning the child: [Set out brief particulars of the proceedings and the court in which the proceedings are pending]


or

*6. There are no pending family law or child welfare proceedings concerning the child.


Attachments
7. The request for the discharge of the return of the child under the Convention is attached.


8. The following documents are also attached:


*(a) certified copy of relevant decision or agreement concerning rights of custody or rights of access;


*(b) certificate or affidavit as to the applicable law;


*(c) information relating to the social background of the child;


*(d) authorisation empowering the Central Authority to act on behalf of the applicant;


*(e) other [specify].


Dated:


[Signature of applicant]


AFFIDAVIT


I, [full name, address and occupation], *swear/*affirm:


1. I am the applicant in these proceedings, and I have read this application.


2. The facts stated in this application that are within my personal knowledge are true. All other facts stated in this application are true to the best of my knowledge, information and belief.


*SWORN/*AFFIRMED by the
applicant at ..................... [place]
on ..................... [date]


[Signature of applicant]


BEFORE ME: [name and title of person
before whom the affidavit is sworn
or affirmed]


[Signature of person
before whom affidavit is
sworn or affirmed]


*Omit whichever is not applicable


______


FORM 11
(Regulation 80 (3))


REPUBLIC OF THE FIJI ISLANDS - FAMILY LAW ACT 2003


REQUEST IN RELATION TO RIGHTS OF ACCESS TO CHILD IN A CONVENTION COUNTRY (HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION)


REQUESTING CENTRAL AUTHORITY OR APPLICANT:
REQUESTED AUTHORITY:

This request concerns the child identified in item 1, below, who will attain the age of 16 on [date].


[NOTE: The following particulars should be completed so far as is possible.]


I - IDENTITY OF THE CHILD AND ITS PARENTS


1. Child



Full name (including father's name ("f/n"), if necessary for identification; surname (if any) underlined)


Date and place of birth


Habitual residence


Passport or identity card No., if any


Description
[NOTE: If possible, a photograph of the child, endorsed with the child's name, should be attached, and listed in Part IX.]


2. Parents



2.1 Mother:
Full name(including father's name ("f/n"), if necessary for identification; surname (if any) underlined)


Date and place of birth


Nationality


Occupation


Habitual residence


Passport or identity card No., if any


2.2 Father
Full name (including father's name ("f/n"), if necessary for identification; surname (if any) underlined)


Date and place of birth


Nationality


Occupation


Habitual residence


Passport or identity card No., if any


2.3 Date and place of marriage


II - REQUESTING INDIVIDUAL OR INSTITUTION


3 Full name (including father's name ("f/n"), if necessary for identification; surname (if any) underlined)


Nationality of individual applicant


Occupation of individual applicant


Address


Passport or identity card No., if any


Relationship to the child


Name and address of legal adviser, if any


III - PLACE WHERE THE CHILD IS THOUGHT TO BE


4.1 Information concerning the alleged to have prevented the exercise of rights of access or denied the enjoyment of access



Full name (including father's name ("f/n"), if necessary for identification; surname (if any) underlined)


Date and place or birth, if known


Nationality, if known


Occupation


Last known address


Passport or identity card No., if any


Description
[NOTE: If possible, a photograph of the person alleged to have prevented the exercise of rights of access or to have denied the enjoyment of access, endorsed with the person's name, should be attached, and listed in Part IX].


IV - CIRCUMSTANCES RELATING TO THE PREVENTION OF EXERCISE OF RIGHTS OF ACCESS


V - FACTUAL OR LEGAL GROUNDS JUSTIFYING THE REQUEST


VI - CIVIL PROCEEDINGS IN PROGRESS


VII - PROPOSED ARRANGEMENTS TO SECURE EXERCISE OF RIGHTS OF ACCESS


VIII - OTHER REMARKS


IX - LIST OF DOCUMENTS ATTACHED (e.g. certified copy of relevant decision or agreement concerning rights of custody or rights of access; certificate or affidavit as to the applicable law; information relating to the social background of the child; authorization empowering the Central Authority to act on behalf of applicant, photographs mentioned above)


I authorise the requested Central Authority and its agents to act on my behalf and to do all things reasonable and necessary in connection with this application.


Date:

Place:


[Signature and/or stamp of the requesting Central Authority or applicant]


______


FORM 12
(Regulation 81 (2))


FAMILY LAW ACT 2003


IN THE FAMILY DIVISION OF THE *HIGH/*MAGISTRATES' COURT
AT [place]
No.


BETWEEN


The Chief Executive Officer, Ministry of Justice, as Central Authority for the Republic of the Fiji Islands, Applicant


AND


[Full name (including father's farm, where necessary for identification; surname (if any) underlined)], Respondent


APPLICATION INITIATING PROCEEDINGS FOR ACCESS TO CHILD IN THE FIJI ISLANDS (HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION)


Date of filing:


Filed by the Chief Executive Officer, Ministry of Justice, whose address for service is:


NOTICE TO RESPONDENT
[For completion by registrar after filing of the following Application]


To the abovenamed Respondent


TAKE NOTICE that the attached application HAS BEEN SET DOWN FOR HEARING by the Court at [place] ..................... on [date] ..............., at [time]


AND FURTHER TAKE NOTICE THAT -


(a) if you wish to defend this application but to raise no new issues, you may, at the earliest practicable date before the return day set out above, file and serve an affidavit setting out briefly the matters on which you rely;


(b) if you wish to defend this application and to seek some order other than the order sought in this application, you may, at the earliest practicable date before the return day set out above, file and serve a cross-application and an affidavit in support; and


(c) if you do not appear at the hearing, the Court may proceed to make the orders sought, or similar orders, in your absence.


Dated:

Registrar


APPLICATION


The Chief Executive Officer, Ministry of Justice, as Central Authority for the Republic of the Fiji Islands, applies for the following orders:


[Specify each order sought in a separate paragraph, lettered (a), (b), etc.]


Details concerning child
l. The child, [full name], was born on [date].


2. The habitual residence of the child immediately prior to any breach of rights of access was [place] in [country], a convention country.


3. The child is now residing with [full name, [relationship, if any, to child], at [address].


Details concerning rights of custody of child
4. [Full name], [relationship, if any, to child], of [address], has rights of custody in respect of the child by reason of the following factual and legal circumstances [Include details of any custody order]:


Details concerning rights of access/contact
*5. The applicant under the Convention on the Civil Aspects of International Child Abduction, [full name], [relationship, if any, to child], of [address], has rights of access in respect of the child by reason of the following factual and legal circumstances [Include details of any access order]:


or

*5. The applicant under the Convention on the Civil Aspects of International Child Abduction, [full name], [relationship, if any, to child], of [address], has no existing rights of access in respect of the child but wishes to secure rights to access under Fiji Islands law.


6. The following are the circumstances in which rights of access have been breached or enjoyment of access denied:


Pending proceedings in the Fiji Islands
*7. The following are particulars of pending family law or child welfare proceedings concerning the child: [Set out brief particulars of any pending proceedings and the court in which the proceedings are pending]


or

*7. There are no pending family law or child welfare proceedings concerning the child.


Attachments
8. The request in relation to rights of access to the child under the Convention is attached.


9. The following documents are also attached:


*(a) certified copy of relevant decision or agreement concerning rights of custody or rights of access;


*(b) certificate or affidavit as to the applicable law;


*(c) information relating to the social background of the child;


*(d) authorization empowering the Central Authority to act on behalf of the applicant,


*(e) other [specify].


Dated:

[Signature of applicant]


AFFIDAVIT


I, [full name], Chief Executive Officer, Ministry of Justice, *swear/*affirm:


1. I am the applicant in these proceedings, and I have read, this application.


2. The facts stated in this application that are within my personal knowledge are true. All other facts stated in this application are true to the best of my knowledge, information and belief.


*SWORN/*AFFIRMED by the
applicant at .......................... [place]
on ............................ [date]


[Signature of applicant]


BEFORE ME: [name and title of person
before whom the affidavit is sworn
or affirmed]


[Signature of person
before whom affidavit is
sworn or affirmed)


*Omit whichever is not applicable


______


FORM 13
(Regulation 81 (5) (a))


FAMILY LAW ACT 2403


IN THE FAMILY DIVISION OF THE *HIGH/*MAGISTRATES' COURT
AT [place]
No.


BETWEEN:


The Chief Executive Officer, Ministry of justice, as Central Authority for the Republic of the Fiji islands, Applicant


AND


[Full name (including father's name, where necessary for identification; surname (if any) underlined)], Respondent`


*ANSWER AND CROSS APPLICATION


ANSWER


In answer to the application filed on [date] and served on [date], the respondent states that [Set out matters to be pleaded]:


1. .................................................................................
2. .................................................................................


[*CROSS APPLICATION


The abovenamed respondent, whose occupation is [specify], applies for the following orders:


[Specify each order sought in a separate paragraph, lettered (a), (b), etc.]


Details concerning child
1. The child, [full name], was born on [date].
2. The child is now residing with [full name], [relationship, if any, to child], at [address].


Details concerning rights of access/custody
*3. There respondent, [full name], [relationship, if any, to child], of [address], has rights *access/*custody in respect of the child by reason of the following factual and legal circumstances: [Include details of any access/custody order]


or

*3. The respondent, [full name], [relationship, if any, to child], of [address], has no existing rights of access in respect of the child but wishes to secure rights of access under Fiji Islands law.


Pending proceedings in the Fiji Islands
*4. The following are particulars of pending family law or child welfare proceedings concerning the child: [Set out brief particulars of any pending proceedings and the court in which the proceedings are pending]


or

*4. There are no pending family law or child welfare proceedings concerning the child.


Attachments
5. The following documents are attached:


*(a) certified copy of relevant decision or agreement concerning rights of custody or rights of access;


*(b) information relating to the social background of the child;


*(c) other [Specify].


Dated:

[Signature of respondent] ]


AFFIDAVIT


I, [full name, address and occupation], *swear/*affirm:


1. I am the respondent in these proceedings, and I have read the answer [*and cross application] set out above.


2. The facts skated in the answer [*and cross application] that are within my personal knowledge are true. All other facts stated in the answer [*and cross application] are true to the best of my knowledge, information and belief.


*SWORN/*AFFIRMED by the
respondent at ................................ [place]
on ...................................[date]


[Signature of respondent]


BEFORE ME: [name and title of person
before whom the affidavit is sworn
or affirmed]


[Signature of person
before whom affidavit is
sworn or affirmed]

* Omit if not applicable.


______


FORM 14
(Regulation 81 (5))


FAMILY LAW ACT 2003


IN THE FAMILY DIVISION OF THE *HIGH/*MAGISTRATES' COURT
AT [place]
No.


BETWEEN:


The Chief Executive Officer, Ministry of Justice, as Central Authority for the Republic of the Fiji Islands, Applicant


AND


[Full name (including father's name, where necessary for identification; surname (if any) underlined)], Respondent


REPLY TO ANSWER [*AND CROSS APPLICATION]


In reply to the answer [*and cross application] filed on [date] and served on [date], the applicant states [Set out matters in reply]:


1. .................................................................................
2. .................................................................................


AFFIDAVIT


I, [full name], Chief Executive Officer, Ministry of Justice, *swear/*affirm:


1. I am the applicant in these proceedings and I have read this reply.


2. The facts stated in this reply that are within my personal knowledge are true. All other facts stated in this reply are true to the best of my knowledge, information and belief.


*SWORN/*AFFIRMED by the
applicant at .................... [place]
on .................. [date]


[Signature of applicant]


BEFORE ME: [name and title of person
before whom the affidavit is sworn
or affirmed]


[Signature of person
before whom affidavit is
sworn or affirmed]

* Omit if not applicable.

______


SCHEDULE 2


RECIPROCATING JURISDICTIONS
(Regulation 29)


PART I - FULLY RECIPROCATING JURISDICTIONS


Australia
Canada - the following Provinces and Territory:

British Columbia

Manitoba

New Brunswick

Ontario

Saskatchewan

Yukon
India
Kiribati
Nauru
New Zealand
Solomon Islands
South Africa
Tanzania
Tuvalu
United Kingdom of Great Britain and Northern Ireland, together with:

Channel Islands

Isle of Man
United States of America - the following State:

California
Western Samoa


PART II - JURISDICTIONS WITH RESTRICTED RECIPROCITY


Canada - the following Province:
Alberta, subject to the exclusion of the following classes of orders:


(a) a Provisional Affiliation Order;


(b) an Order which provides for the payment by a person adjudged, found or declared to be a child's father of expenses incidental to a child's birth or, where the child has died, of his funeral expenses;


(c) a Provisional Order providing for the variation or revocation of a maintenance order.

______


SCHEDULE 3


CONVENTION ON THE RECOVERY ABROAD OF MAINTENANCE
(Regulation 49)


PREAMBLE


Considering the urgency of solving the humanitarian problem resulting from the situation of persons in need dependent for their maintenance on persons abroad,


Considering that the prosecution or enforcement abroad of claims for maintenance gives rise to serious legal and practical difficulties, and


Determined to provide a means to solve such problems and to overcome such difficulties,


The Contracting Parties have agreed as follows:


Article 1
SCOPE OF THE CONVENTION

1. The purpose of this convention is to facilitate the recovery of maintenance to which a person, hereinafter referred to as claimant, who is in the territory of one of the Contracting Parties, claims to be entitled from another person, hereinafter referred to as respondent, who is subject to the jurisdiction of another Contracting Party. This purpose shall be effected through the offices of agencies which will hereinafter be referred to as Transmitting and Receiving Agencies.


2. The remedies provided for in this Convention are in addition to, and not in substitution for, any remedies available under municipal or international law.


Article 2
DESIGNATION OF AGENCIES

1. Each Contracting Party shall, at the time when the instrument of ratification or accession is deposited, designate one or more judicial or administrative authorities which shall act in its territory as Transmitting Agencies.


2. Each contracting party shall, at the time when the instrument of ratification or accession is deposited, designate a public or private body which shall act in its territory as Receiving Agency.


3. Each Contracting Party shall promptly communicate to the Secretary-General of the United Nations the designations made under paragraphs l and 2 and any changes made in respect thereof.


4. Transmitting and Receiving Agencies may communicate directly with Transmitting and Receiving Agencies of other Contracting Parties.


Article 3
APPLICATION TO TRANSMITTING AGENCY

1. Where a claimant is in the territory of one Contracting Party, hereinafter referred to as the State of the claimant, and the respondent is subject to the jurisdiction of another Contracting Party, hereinafter referred to as the State of the respondent, the claimant may make application to a Transmitting Agency in the State of the claimant for the recovery of maintenance from the respondent.


2. Each Contracting Party shall inform the Secretary-General as to the evidence normally required under the law of the State of the Receiving Agency for the proof of maintenance claims, of the manner in which such evidence should be submitted, and of other requirements to be complied with under such law.


3. The application shall be accompanied by all relevant documents, including, where necessary, a power of attorney authorizing the Receiving Agency to act, or to appoint some other person to act, on behalf of the claimant. It shall also be accompanied by a photograph of the claimant and, where available, a photograph of the respondent.


4. The Transmitting Agency shall take all reasonable steps to ensure that the requirements of the law of the State of the Receiving Agency are complied with, and, subject to the requirements of such law, the application shall include:


(a) the full name, address, date of birth, nationality, and occupation of the claimant, and the name and address of any legal representative of the claimant;


(b) the full name of the respondent, and, so far as known to the claimant, his addresses during the preceding five years, date of birth, nationality, and occupation;


(c) particulars of the grounds upon which the claim is based and of the relief sought, and any other relevant information such as the financial and family circumstances of the claimant and the respondent.


Article 4
TRANSMISSION OF DOCUMENTS

1. The Transmitting Agency shall transmit the documents to the Receiving Agency of the State of the respondent, unless satisfied that the application is not made in goad faith.


2. Before transmitting such documents, the Transmitting Agency shall satisfy itself that they are regular as to form, in accordance with the law of the State of the claimant.


3. The Transmitting Agency may express to the Receiving Agency an opinion as to the merits of the case and may recommend that free legal aid and exemption from costs be given to the claimant.


Article 5
TRANSMISSION OF JUDGMENTS AND OTHER JUDICIAL ACTS

The Transmitting Agency shall, at the request of the claimant, transmit, under the provisions of article 4, any order, final or provisional, and any other judicial act, obtained by the claimant for the payment of maintenance in a competent tribunal of any of the Contracting Parties, and, where necessary and possible, the record of the proceedings in which such order was made.


The orders and judicial acts referred to in the preceding paragraph may be transmitted in substitution for or in addition to the documents mentioned in article 3.


Proceedings under article 6 may include, in accordance with the law of the State of the respondent, exequatur or registration proceedings or an action based upon the act transmitted under paragraph 1.


Article 6
FUNCTIONS OF THE RECEIVING AGENCY

1. The Receiving Agency shall, subject always to the authority given by the claimant, take, on behalf of the claimant, all appropriate steps for the recovery of maintenance, including the settlement of the claim and, where necessary, the institution and prosecution of an action for maintenance and the execution of any order or other judicial act for the payment of maintenance.


2. The Receiving Agency shall keep the Transmitting Agency currently informed. If it is unable to act, it shall inform the Transmitting Agency of its reasons and return the documents.


3. Notwithstanding anything in this Convention, the law applicable in the determination of all questions arising in any such action or proceedings shall be the law of the State of the respondent, including its private international law.


Article 7
LETTERS OF REQUEST

If Provision is made for letters of request in the laws of the two Contracting Parties concerned, the following rules shall apply:


(a) A tribunal hearing an action for maintenance may address letters of request for further evidence, documentary or otherwise, either to the competent tribunal of the other Contracting Party or to any other authority or institution designated by the other Contracting Party in whose territory the request is to be executed.


(b) In order that the parties may attend or be represented, the requested authority shall give notice of the date on which and the place at which the proceedings requested are to take place to the Receiving Agency and the Transmitting Agency concerned, and to the respondent.


(c) Letters of request shall be executed with all convenient speed; in the event of such letters of request not being executed within four months from the receipt of the letters by the requested authority, the reasons for such non-execution or for such delay shall he communicated to the requesting authority.


(d) The execution of letters of request shall not give rise to reimbursement of fees or costs of any kind whatsoever.


(e) Execution of letters of request may only be refused:


(1) If the authenticity of the letters is not established;


(2) if the Contracting Party in whose territory the letters are to he executed deems that its sovereignty or safety would be compromised thereby,


Article 8
VARIATION OF ORDERS

The provisions of this Convention apply also to applications for the variation of maintenance orders.


Article 9
EXEMPTIONS AND FACILITIES

l. In proceedings under this Convention, claimants shall be accorded equal treatment and the same exemptions in the payment of costs and charges as are given to residents or nationals of the State where the proceedings are pending.


2. Claimants shall not be required, because of their status as aliens or non-residents, to furnish any bond or make any payment or deposit as security for costs or otherwise.


3. Transmitting and Receiving Agencies shall not charge any fees in respect of services rendered under this Convention.


Article 10
TRANSFER OF FUNDS

A Contracting party, under whose law the transfer of funds abroad is restricted, shall accord the highest priority to the transfer of funds payable as maintenance or to cover expenses in respect of proceedings under this Convention.


Article 11
FEDERAL STATE CLAUSE

In the case of a Federal or non-unitary State, the following provisions shall apply:


(a) With respect to those articles of this Convention that come within the legislative jurisdiction of the federal legislative authority, the obligations of the Federal Government shall to this extent he the same as those of Parties which are not Federal States;


(b) With respect to those articles of this Convention that come within the legislative jurisdiction of constituent States, provinces or cantons which are not, under the constitutional system of the Federation, bound to take legislative action, the Federal Government shall bring such articles with a favourable recommendation to the notice of the appropriate authorities of States, provinces or cantons at the earliest possible moment;


(c) A Federal State Party to this Convention shall, at the request of any other Contracting Party transmitted through the Secretary-General, supply a statement of the law and practice of the Federation and its constituent units in regard to any particular provision of the Convention, showing the extent to which effect has been given to that provision by legislative or other action.


Article 12
TERRITORIAL APPLICATION

The provisions of this Convention shall extend or be applicable equally to all non-self-governing, trust or other territories for the international relations of which a Contracting Party is responsible, unless the latter, on ratifying or acceding to this Convention, has given notice that the Convention shall not apply to any one or more of such territories. Any Contracting Party making such a declaration may, at any time thereafter, by notification to the Secretary-General, extend the application of the Convention to any or all of such territories.


Article 13
SIGNATURE, RATIFICATION AND ACCESSION

1. This Convention shall be open for signature until 31 December 1956 on behalf of any Member of the United Nations, any non-member State which is a Party to the Statute of the International Court of Justice, or member of a specialized agency, and any other non-member State which has been invited by the Economic and Social Council to become a Party to the Convention.


2. This Convention shall be ratified. The instruments of ratification shall be deposited with the Secretary-General.


3. This Convention may be acceded to at any time on behalf of any of the States referred to in paragraph 1 of this article. The instruments of accession shall be deposited with the Secretary-General.


Article 14
ENTRY INTO FORCE

1. This Convention shall come into force on the thirtieth day following the date of deposit of the third instrument of ratification or accession in accordance with article 13.


2. For each State ratifying or acceding to the Convention after the deposit of the third instrument of ratification or accession, the Convention shall enter into force on the thirtieth day following the date of the deposit by such State of its instrument of ratification or accession.


Article 15
DENUNCIATION

1. Any Contracting Party may denounce this Convention by notification to the Secretary-General. Such denunciation may also apply to some or all of the territories mentioned in Article 12.


2. Denunciation shall take effect one year after the date of receipt of the notification by the Secretary-General, except that it shall not prejudice cases pending at the time it becomes effective.


Article 16
SETTLEMENT OF DISPUTES

If a dispute should arise between Contracting Parties relating to the interpretation or application of this Convention, and if such dispute has not been settled by other means, it shall be referred to the International Court of Justice. The dispute shall be brought before the Court either by the notification of a special agreement or by a unilateral application of one of the parties to the dispute.


Article 17
RESERVATIONS

1. In the event that any State submits a reservation to any of the articles of this Convention at the time of ratification or accession, the Secretary-General shall communicate the text of the reservation to all States which are Parties to this Convention, and to the other States referred to in article 13. Any Contracting Party which objects to the reservation may, within a period of ninety days from the date of the communication, notify the Secretary-General that it does not accept it, and the Convention shall not then enter into force as between the objecting State and the State making the reservation. Any State thereafter acceding may make such notification at the time of its accession.


2. A Contracting Party may at any time withdraw a reservation previously made and shall notify the Secretary-General of such withdrawal.


Article 18
RECIPROCITY

A Contracting Party shall not be entitled to avail itself of this Convention against other Contracting Parties except to the extent that it is itself bound by the Convention.


Article 19
NOTIFICATIONS BY THE SECRETARY-GENERAL

1. The Secretary-General shall inform all Members of the United Nations and the non-member States referred to in article 13:


(a) of communications under paragraph 3 of article 2;


(b) of information received under paragraph 2 of article 3;


(c) of declarations and notifications made under article 12,


(d) of signatures, ratifications and accessions under article 13;


(e) of the date on which the Convention has entered into force under paragraph 1 of article 14;


(f) of denunciations made under paragraph 1 of article 15;


(g) of reservations and notifications made under article 17.


2. The Secretary-General shall also inform all Contacting Parties of requests for revision and replies thereto received under article 20.


Article 20
REVISION

1. Any Contracting Party may request revision of this Convention at any time by a notification addressed to the Secretary-General.


2. The Secretary-General shall transmit the notification to each Contracting Party with a request that such Contracting Party reply within four months whether it desires the convening of a Conference to consider the proposed revision. If a majority of the Contracting Parties favour the convening of a Conference it shall be convened by the Secretary-General.


Article 21
LANGUAGES AND DEPOSIT OF CONVENTION

The original of this Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General, who shall transmit certified true copies thereof to all States referred to in article 13.


______


SCHEDULE 4


CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL, CHILD ABDUCTION
(Regulation 63 (1))


The States signatory to the present Convention,
Firmly convinced that the interests of children are of paramount importance in matters relating to their custody,


Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access,


Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions -


CHAPTER I - SCOPE OF THE CONVENTION


Article 1


The objects of the present Convention are -


a to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and


b to ensure that rights of custody and of access under the law of one Contracting Slate are effectively respected in the other Contracting States.


Article 2


Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available.


Article 3


The removal or the retention of a child is to be considered wrongful where -


a it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and


b at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.


The rights of custody mentioned in sub-paragraph a above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.


Article 4


The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.


Article 5


For the purposes of this Convention -


a 'rights of custody' shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place or residence;


b 'rights of access' shall include the right to take a child for a limited period of time to a place other than the child's habitual residence.


CHAPTER II - CENTRAL AUTHORITIES
Article 6


A Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities.


Federal States, States with more than one system of law or States having autonomous territorial Organizations shall be free to appoint more than one Central Authority and to specify the territorial extent of their powers. Where a State has appointed more than one Central Authority, it shall designate the Central Authority to which applications may be addressed for transmission to the appropriate Central Authority within that State.


Article 7


Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention.


In particular, either directly or through any intermediary, they shall take all appropriate measures -


a to discover the whereabouts of a child who has been wrongfully removed or retained;


b to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures,


c to secure the voluntary return of the child or to bring about an amicable resolution of the issues;


d to exchange, where desirable, information relating to the social background of the child;


e to provide information of a general character as to the law of their State in connection with the application of the Convention;


f to initiateorfacilitatetheinstitutionof.judicialoradministrativeproceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access;


g where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers;


h to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child;


i to keep each other informed with respect to the operation of this Convention and, as fare as possible, to eliminate any obstacles to its application.


CHAPTER III - RETURN OF CHILDREN


Article 8

Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child's habitual residence or to the Central Authority of any other Contracting State f or assistance in securing the return of the child.


The application shall contain -


a information concerning the identity of the applicant, of the child and of the person alleged to have removed or retained the child;


b where available, the date of birth of the child;


c the grounds on which the applicant's claim for return of the child is based;


d all available information relating to the whereabouts of the child and the identity of the person with whom the child is presumed to be.


The application may be accompanied or supplemented by -


e an authenticated copy of any relevant decision or agreement;


f a certificate or an affidavit emanating from a Central Authority, or other competent authority of the State of the child's habitual residence, or from a qualified person, concerning the relevant law of that State;


g any other relevant document


Article 9


If the Central Authority which receives an application referred to in Article 8 has reason to believe that the child is in another Contracting State, it shall directly and without delay transmit the application to the Central Authority of that Contracting State and inform the requesting Central Authority, or the applicant, as the case may be.


Article 10


The Central Authority of the State where the child is shall take or cause to be taken appropriate measures in order to obtain the voluntary return of the child.


Article 11


The judicial or administrative authorities of Contracting States shall act expeditiously proceedings for the return of children.


If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested State Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be.


Article 12


Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.


The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child unless it is demonstrated that the child is now settled in its new environment.


Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.


Article 13


Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -


a the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or


b there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.


The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.


In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.


Article 14


In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognized or not in the State of the habitual residence of the child, without recourse of the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.


Article 15


The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.


Article 16


After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice.


Article 17


The sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention, but the judicial or administrative authorities of the requested State may take account of the reasons for that decision in applying this Convention.


Article 18


The provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time.


Article 19


A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.


Article 20


The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.


CHAPTER IV - RIGHTS OF ACCESS


Article 21


An application to make arrangements for organizing or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child.


The Central Authorities are bound by the obligations of co-operation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights.


The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organizing or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject.


CHAPTER V - GENERAL PROVISIONS


Article 22


No security, bond or deposit, however described, shall be required to guarantee the payment of costs and expenses in the judicial or administrative proceedings falling within the scope of this Convention.


Article 23


No legalization or similar formality may be required in the context of this Convention.


Article 24


Any application, communication or other document sent to the Central Authority of the requested State shall be in the original language, and shall be accompanied by a translation into the official language or one of the official languages of the requested State or, where that is not feasible, a translation into French or English.


However, a Contracting State may, by making a reservation in accordance with Article 42, object to the use of either French or English, but not both, in any application, communication or other document sent to its Central Authority.


Article 25


Nationals of the Contracting States and person who are habitually resident within those States shall be entitled in matters concerned with the application of this Convention to legal aid and advice in any other Contracting State on the same conditions as if they themselves were nationals of and habitually resident in that State.


Article 26


Each Central Authority shall bear its own costs in applying this Convention.


Central Authorities and other public services of Contracting States shall not impose any charges in relation to applications submitted under this Convention. In particular, they may not required any payment from the applicant towards the costs and expenses of the proceedings or, where applicable, those arising from the participation of legal counsel or advisers. However, they may require the payment of the expenses incurred or to be incurred in implementing the return of the child.


However, a Contracting State may, by making a reservation in accordance with Article 42, declare that it shall not be bound to assume any costs referred to in the preceding paragraph resulting from the participation of legal counsel or advisers or from court proceedings, except insofar as those costs may be covered by its system of legal aid and advice.


Upon ordering the return of a child or issuing an order concerning rights of access under this Convention, the judicial or administrative authorities may, where appropriate, direct the person who removed or retained the child, or who prevented the exercise of rights of access to pay necessary expenses incurred by or on behalf of the applicant, including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant, and those of returning the child.


Article 27


When it is manifest that the requirements of this Convention are not fulfilled or that the application is otherwise not well founded, a Central Authority is not bound to accept the application. In that case, the Central Authority shall forthwith inform the applicant or the Central Authority through which the application was submitted, as the case may be, of its reasons.


Article 28


A Central Authority may required that the application be accompanied by a written authorization empowering it to act on behalf of the applicant, or to designate a representative so to act.


Article 29


This Convention shall not preclude any person, institution or body who claims that there has been a breach of custody or access rights within the meaning of Article 3 or 21 from applying directly to the judicial or administrative authorities of a Contracting State, whether or not under the provisions of this Convention.


Article 30


Any application submitted to the Central Authorities or directly to the judicial or administrative authorities of a Contracting State in accordance with the terms of this Convention, together with documents and any other information appended thereto or provided by a Central Authority, shall be admissible in the courts or administrative authorities of the Contracting States.


Article 31


In relation to a State which in matters of custody of children has two or more systems of law applicable in different territorial units -


a any reference to habitual residence in that State shall be construed as referring to habitual residence in a territorial unit of that State;


b any reference to the law of the State of habitual residence shall be construed as referring to the law of the territorial unit in that State where the child habitually resides.


Article 32


In relation to a State which in matters of custody of children has two or more systems of law applicable to different categories of persons, any reference to the law of that State shall be construed as referring to the legal system specified by the law of that State.


Article 33


A State within which different territorial units have their own rules of law in respect of custody of children shall not be bound to apply this Convention where a State with a unified system of law would not be bound to do so.


Article 34


This convention shall take priority in matters within its scope over the Convention of 5 October 1961 concerning the powers of authorities and the law applicable in respect of the protection of minors, as between Parties to both Conventions. Otherwise the present convention shall not restrict the application of an international instrument in force between the State or origin and the State addressed or other law of the State addressed for the purposes of obtaining the return of a child who has been wrongfully removed or retained or of organizing access rights.


Article 35


This convention shall apply as between Contracting States only to wrongful removals or retentions occurring after its entry into force in those States.


Where a declaration has been made under Article 39 or 40, the reference in the preceding paragraph to a Contracting State shall be taken to refer to the territorial unit or units in relation to which this Convention applies.


Article 36


Nothing in this Convention shall prevent two or more Contracting States, in order to limit the restrictions to which the return of the child may be subject, from agreeing among themselves to derogate from any provisions of this Convention which may imply such a restriction.


CHAPTER VI - FINAL CLAUSES
Article 37


The Convention shall be open for signature by the States which were Members of the Hague Conference on Private International Law at the time of its Fourteenth Session. It shall be ratified, accepted or approved and the instruments of ratification, acceptance or approval shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands.


Article 38


Any other State may accede to the Convention.


The instrument of accession shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands.


The Convention shall enter into force for a State acceding to it on the first day of the third calendar month after the deposit of its instrument of accession.


The accession will have effect only as regards the relations between the acceding State and such Contracting States as will have declared their acceptance of the accession. Such a declaration will al so have to be made by any Member State ratifying, accepting or approving the Convention after an accession. Such declaration shall be deposited at the Ministry of Foreign Affairs of the Kingdom of the Netherlands: this Ministry shall forward, through diplomatic channels, a certified copy to each of the Contracting States.


The Convention will enter into force as between the acceding State and the State that has declared its acceptance of the accession on the first day of the third calendar month after the deposit of the declaration of acceptance.


Article 39


Any State, may at the time of signature, ratification, acceptance, approval or accession, declare that the Convention shall extent to all the territories for the international relations of which it is responsible, or to one or more of them. Such a declaration shall take effect at the time the Convention entered into force for that State.


Such declaration, as well as any subsequent extension, shall be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands.


Article 40


If a Contracting State has two or more territorial units in which different systems of law are applicable in relation to matters dealt with in this Convention, it may at the time of signature, ratification, acceptance, approval or accession declare that this Convention shall extend to all its territorial units or only to one or more of them and may modify this declaration by submitting another declaration at any time.


Any such declaration shall be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands and shall state expressly the territorial units to which the Convention applies.


Article 41


Where a Contracting State has a system of government under which executive judicial and legislative powers are distributed between central and other authorities within that State, its signature or ratification, acceptance or approval of, or accession to this Convention, or its making of any declaration in terms of Article 40 shall carry no implication as to the internal distribution of powers within the State.


Article 42


Any State may, not later than the time of ratification, acceptance, approval or accession. or at the time of making a declaration in terms of Article 39 or 40, make one or both of the reservations provided for in Article 24 and Article 26, third paragraph. No other reservations shall be permitted.


Any State may at any time withdraw a reservation it has made. The withdrawal shall be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands.


The reservation shall cease to have effect on the first day of the third calendar month after the notification referred to in the preceding paragraph.


Article 43


The Convention shall enter into force on the first day of the third calendar month after the deposit of the third instrument of ratification, acceptance, approval or accession referred to in Articles 37 and 38.


Thereafter the Convention shall enter into force -


1 for each State ratifying, accepting, approving or acceding to it subsequently, on the first day of the third calendar month after the deposit of its instrument of ratification, acceptance, approval or accession;


2 for any territory or territorial unit to which the Convention has been extended in conformity with Article 39 or 40, on the first day of the third calendar month after the notification referred to in that Article.


Article 44


The Convention shall remain in force for five years from the date of its entry into force in accordance with the first paragraph of Article 43 even for States which subsequently have ratified, accepted, approved it or acceded to it. If there has been no denunciation, it shall be renewed tacitly every five years.


Any denunciation shall be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands at least six months before the expiry of the five year period. It may be limited to certain of the territories or territorial units to which the Convention applies.


The denunciation shall have effect only as regards the State which has notified it. The Convention shall remain in force for the other Contracting States.


Article 45


The Ministry of Foreign Affairs of the Kingdom of the Netherlands shall notify the States Members of the Conference, and the States which have acceded in accordance with Article 38, of the following -


1 the signatures and ratifications, acceptances and approves referred to in Article 37;


2 the accessions referred to in Article 38;


3 the date on which the Convention enters into force in accordance with Article 43;


4 the extensions referred to in Article 39;


5 the declarations referred to in Articles 38 and 40;


6 the reservations referred to in Article 24 and Article 26, third paragraph, and the withdrawals referred to in Article 42;


7 the denunciations referred to in Article 44.


MADE at Suva this .................. day of .................... 2005.


Q. B. BALE
Attorney General
and Minister for Justice



PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/fj/legis/sub_leg/fla2003flr2005337