What Happens When a Child is Not Returned

10/11/2016

In situations where parents have separated sometimes there are situations when at the end of the time children are spending with the parent (with whom they do not live) that parent does not return the children.  There are also situations where a parent can simply relocate or attempt to relocate to a different area or State with the children without telling the other parent.  This can be called child abduction.

If this situation occurs can the parent with whom the children live, recover the child?  The answer will be different depending on whether there are Parenting Orders in place or whether there are no Parenting Orders in place.

If there are Parenting Orders

If there are Parenting Orders having been made by the Family Court of Australia or the Federal Circuit Court of Australia, the Family Court or the Federal Circuit Court can order that a child or children be returned to the parent of the child or the person who has parental responsibility of the child.  The application for the return of the children is called a Recovery Order.  The application should be filed in the Federal Circuit Court of Australia.  These applications are often made on what is called an Ex Parte basis.  In other words, without the other parent (against whom the order is sought) being present in Court.

If There are No Parenting Orders

If you do not already have an existing Parenting Order then there will need to be an application for Parenting Orders as well as a Recovery Order.  This can be a more difficult situation as there are no Orders for Parenting in place and the Court will need to make Orders and then also make an Order to have the children returned to the other parent.

How is the Application Made

The Application is made to the Court by filing an Initiating Application in the Court. If there are already proceeding in the Court an Application in a Case can be filed in those proceedings.

What do I have to tell the Court

The application is supported by an Affidavit prepared usually by a solicitor setting out:-

  • A brief history of the relationship between you and the person the child is presumed to be with.
  • A list of previous court hearings and family law orders.
  • Details about the child and where he/she usually lives.
  • How and when the child was taken from you or not returned back to you.
  • Where the child might be and the basis for that belief.
  • Steps (if any) that have been taken to find the child.
  • Why it is in the child’s best interests to be returned to you.
  • The likely impact on the child if a Recovery Order is not made.

At the time of filing, it is important to ensure that the Court appoints an early return date so that the application is dealt with as soon as is possible.

Once the Order issues the Order will be enforced and acted upon by the Australian Federal Police who have a system for implementation of recovery orders.

We recommend that if the parties agree to an arrangement as to when, where and with whom the children spend time, the arrangement should be reduced to a form, and an Application can be made for an order of the Court by Consent.  Our experienced family lawyers at Watson & Watson can assist you if you are faced with children contact issues or if you wish to legally document agreed contact arrangements and have peace of mind as to the time spent with your children.

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