Return of Child absconded by parent at Christmas returned by Court Order to original place of residence and familiar surroundings

11/02/2016

Watson & Watson in late December 2015/January 2016 received instructions in relation to recovery action for children taken by one parent without the consent of the other parent or Court Order.  Some involved international removal and the Hague Convention.  Others were more localised.  At least two involved removal of the child without any prior warning. 

In one particular case Richard Watson received instructions from David the father.  The Family Court has now ordered that the child be returned to David in his local district and the child has returned to the primary school where he has been for some years. 

Without urgent action by Richard Watson an experienced family lawyer the child would still be at worst unable to be found and at best with his mother in another State away from his father, school, friends and the local community. 

A few days before Christmas Richard Watson received instructions from David the father of a child who advised that when David went to collect the child from the mother a short distance from where he lived he found that the rented house was empty, the mother and child had vacated the premises and disappeared.

The father did not know the whereabouts of the child.  The mother took action to cut off all prior contact points such as telephone numbers.  The mother entered into an elaborate plan for the purposes of taking the child without the knowledge, agreement or consent of the father.

There were numerous difficulties in this case including:

  1. the father did not know where the mother or child was;
  2. there were no Court Orders in place which could be enforced by the Court to have the child returned either to the district, to the school or to the pre-existing arrangement of joint parenting and the child in essence spend time equally with the father and the mother;
  3. in addition, there were some procedural difficulties as the Family Courts were not fully operational at that time over Christmas.

The first problem was to locate the mother or more importantly a person who could advise the mother of the application being made by the father to the Court for the return of the child.

Without such a Court Order it was difficult to have the matter considered by the Family Court.  Almost universally a virtual requirement of proceedings in a Court is that each of the parties are aware of the proceedings and each of the parties have been given an opportunity to put forward their case.  The Court considers the outcome of the dispute in light of the matters (in accordance with the evidence) put to the Court by each party or their representatives.

The Originating Application was for parenting orders including the return of the child to the father.  

In this case after extensive enquiries we ascertained some contact details with persons who we established would likely have contact with the mother.

This enabled Richard Watson to make an application to the Family Court for an order that service on either the mother (if she could be found) or some other person(s) named in the application

The Initial Application in a Case was made for orders that the Originating Application could be served on the mother by way of substituted service.

The Court having considered the evidence in relation to this Application in a Case made an order that the papers filed in Court would be served by substituted service namely on a particular named third party who we established had contact with the Mother.

In addition, the Family Court allocated an early return date for the application so that the case could urgently be considered by the Court.

It was particularly important that the child be found and the child be bought back to his environment. 

It was critical that evidence be produced as to the arrangement between the mother and father in relation to the child prior to this unfortunate event just before Christmas.  It was a surprising event by the mother, in particular, in that for approximately 3 years there had been an arrangement between the mother and the father concerning the welfare of the child principally in that the child was looked after by each parent for equal time in close proximity to the child’s school.

We almost always recommend that Orders should be made rather than reply upon an ad hoc plan or parenting plan. If there had been an Order, an application could have been made for enforcement of the Court Order.

Following service of the Initiating Application and supporting affidavit on a person nominated in the Application for substituted service the mother engaged lawyers in another State. 

Unfortunately, the matter could not be resolved by having the mother return with the child.  Having regard to the circumstances of the case the Judge proceeded with the interim application on the first return date.  The Judge made appropriate orders for the return of the child to the Father.

It is important that the Judge gave the appropriate consideration as to what is in the best interests of the child. 

In this particular case we do not believe the outcome would have been really different if the mother had made an application, before taking the child, for the child to be taken from the district to another State. 

An application for relocation is one that is difficult.  It is dealt with on what is in the best interests of the child. 

Watson & Watson have acted in numerous cases which have unfortunately come about because of events over the Christmas period.  We believe that if more thought had been given to the steps taken, particularly, possibly in frustration a better outcome can be achieved, in particular, for the person who wishes to move with their child to another district/State. 

Dennis Grant and Richard Watson experienced family law practitioners have acted for many parents who find themselves in these very difficult positions.

Please contact Richard Watson if you wish to discuss any matters relating to children’s issues or your financial and/or property settlement.

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