Child Abduction, Location and Recovery

In situations where the other parent or a family member takes your child without your consent or breaches court orders, you may need to seek urgent orders from the Court. Additionally, if a parent or guardian is not disclosing and is refusing to provide the residential address of the child, legal intervention may be required.

The Federal Circuit and Family Court of Australia works closely with the Australian Federal Police to ensure the immediate return of your child if it is deemed to be in their best interests. Such a return is facilitated through what is known as a “Recovery Order,” which is typically only pursued in emergency situations or where there is a reasonable belief that your child is at risk of harm.

The Court is well-equipped to work with other government agencies to locate the child or the parent or guardian who has taken them, if necessary. They can also assist with serving court documents to the parent or guardian, ensuring that they are aware of any legal proceedings concerning the child.

If you are a parent and your child usually lives with you, but their other parent takes them without your consent, conceals or detains them, and refuses to return them, this constitutes parental child abduction.

Similarly, if you have parenting orders in place and the other parent is preventing your child from spending time with you or living with you as per those orders, this is considered a breach of parenting orders.

In either of these situations, you may be eligible to apply for a recovery order.

What is a recovery order?

A recovery order is a court order that directs the return of a child to one of the following individuals:

• A parent of the child.
• A person who has possession of a parenting order stating that the child must live with, communicate with, or spend time with them.
• A person who has possession of a parenting order which has granted parental responsibility.

A recovery order grants the authority to direct personnel, such as police officers, to take appropriate action to locate, recover, and deliver the child to one of the individuals. It also provides directions for the day-to-day care of the child until they are safely returned.

Further, a recovery order prohibits the person who initially took the child from retaining possession of the child, and in case of repeated violations, they could be subject to arrest without a warrant.

Who can apply for a recovery order?

According to Section 67T of the Family Law Act 1975 (Cth), the following individuals are eligible to apply for a recovery order:

• Grandparents of the child.
• An individual who has been granted parental responsibility for the child in accordance with a parenting order.
• An individual to whom the child lives, communicates, or spends time with, as specified in a parenting order.
• An individual who are concerned with the care, welfare, and development of the child.

My child is now interstate, and I did not consent. What can I do?

Without a court order in place, either parent may take a child interstate for a holiday. However, if there is a court order that determines the habitual residence of the child and the times the child is to reside at each parent’s residence, this may prevent the child from leaving the state or territory for any reason, including for a holiday.

A court order may include specific provisions regarding the child’s travel arrangements, including requirements for seeking the other parent’s consent or notifying them of the child’s travel plans. If there is a court order in place, it is important for both parents to comply with its terms to avoid breaching the order and potentially facing legal consequences.

If a parent wishes to take a child interstate for a holiday and there is a court order in place, they should seek legal advice and apply to the court for permission to vary the order before making any travel arrangements.

My child is missing, what can I do?

In case your child is missing, or you do not know where your child is currently located, there are legal measures available to locate them. You can apply for a location order, which requires individuals or organizations to provide information about the child’s whereabouts to the court.

The other legal avenues at your disposal include:

• A Location Order: which requires an individual or government agency to provide the court with information on the child’s location.
• A Commonwealth Information Order: which requires a relevant Australian Government Department, such as Centrelink, to provide the court with any information they may have on the child’s location.
• A Publication Order: which should only be used as a last resort and depends on the nature of the case. This order allows media to release information to the public about the missing child, including photographs of the child and the person they were last seen with.

What if I suspect that my child will be taken overseas?

Under Commonwealth law, it is generally considered an offence for an individual to take or transport a child from Australia if there is a court order in place that restricts or prohibits the child from leaving the country. This includes situations where there are ongoing court proceedings, pending parenting orders, or an appeal to existing parenting orders.

If you suspect that your child might be taken out of Australia without your consent, it is advisable to seek legal advice immediately and to also contact the Australian Federal Police.

My child is already overseas, what can I do?

You may consider placing your child’s name on the Family Law Watchlist or lodging a Child Alert Request with the Australian Passport Office to prevent unauthorised removal.

If your child has already been taken overseas without your authorisation, you may be eligible for legal assistance under the Hague Convention on the Civil Aspects of International Child Abduction.

It is important to know that the Federal Circuit and Family Court of Australia does not have jurisdiction over parenting issues outside the Commonwealth of Australia. In case your child has been taken out of Australia without your consent and without the court’s authorization, you can request help from the Hague Convention on the Civil Aspects of International Child Abduction.

This international agreement is designed to address cases of international parental child abduction and involves multiple countries, referred to as Hague countries, working together to return children to their home country from other Hague countries. Please note that only Hague countries can collaborate with Australia to retrieve your child.

At Wickham Lawyers we understand how challenging it can be to deal with parental child abduction. Our team of experienced family lawyers is here to help you with legal advice and representation. We will work with you to file your court orders and achieve the safe return of your child.

How do I apply for a recovery order?

The process of applying for a recovery order can be complex and emotionally challenging.

To apply for a recovery order under the Family Law Act 1975, you will need to follow these steps:

1. Determine if you are eligible to apply for a recovery order: You may be eligible to apply for a recovery order if you are a parent, a person who has parental responsibility for the child, or a person who has a parenting order that includes the child.
2. Gather information: You will need to gather information about the child’s whereabouts and the circumstances that led to the child being removed from your care.
3. Complete the Application for Recovery Order: You will need to complete the Application for Recovery Order form, which can be found on the Family Court of Australia or Federal Circuit Court of Australia website.
4. File the application: You will need to file the completed application form with the appropriate court, along with any supporting documents and the filing fee.
5. Serve the application on the other party: You will need to serve a copy of the application on the other party, who may be the person who has taken the child or another person who has custody or care of the child.
6. Attend court: You will need to attend court on the date set for the hearing of your application. The court will hear evidence from both parties and make a decision about whether to issue a recovery order.

How does the Court recover my child?

Typically, the Australian Federal Police is responsible for carrying out a Recovery Order by providing information to the Local Area Command police unit where the child is located. The court can authorise or direct a search of any vehicle, vessel, or aircraft and entry to any premises or place to find a child, and force may be used if necessary.

The Recovery Order remains in effect for up to 12 months or until the child is returned, and notice of the child’s return must be given to the court’s Registry Manager that issued the Recovery Order. If a location order is active, the person to whom it applies must also be informed.

The court can issue instructions for the day-to-day care of the child until the child is returned and has the power to prohibit a person from taking the child again. Furthermore, the court may authorise the arrest of a person without a warrant if they take the child again.

Get in touch with Wickham Lawyers today!