When children are not returned to a parent after the Christmas holidays or on any other occasion, it usually results in frantic phone calls and text messages to the other parent to locate the children and to find out what is happening. Prolonged separation from one parent may be traumatic for the children. If you are a parent who has to face this situation, it brings on anxiety about the children’s well-being and fear that you may not see them again. If this occurs, what are your rights as a parent and what steps should you take?
In some cases, the children’s location is known, and the other parent simply refuses to return the children. In a more extreme situation, one parent has abducted the children or is in hiding with the children and the children’s whereabouts are unknown.
The first thing to do would be to immediately try and locate the whereabouts of your children and to contact your spouse to negotiate for their return. At the same time, try and negotiate with your spouse for a video or telephone call with the children. However, if there is risk to you or the child’s safety in approaching the parent or person who is holding the child, you should seek urgent legal advice before contacting the party who is keeping the child or children.
The first priority is the children’s well-being, and the focus must be on the children’s safety. The children should not be further traumatised by the situation. If there is opportunity to speak to the children, keep the conversation as normal as possible.
If there are grave concerns for the child’s safety, you should immediately contact the police for assistance. Depending on the circumstances, the Police may be willing to assist you to establish some form of contact with your child or to carry out a welfare check on them. The Police will however not take any steps to return the child to you unless there is a Court Order in place for the police to recover and return the child to you.
There are different possible scenarios where the children have not been returned:-
- You are separated from your former spouse but there are Court Orders in place relating to the children living with you or spending time with you or communicating with you.
- You are separated from your former spouse but there are no court orders in place as you and your former spouse have been operating on an informal agreement relating to the children’s care and living arrangements.
- You and your spouse are living together and are not separated. Your spouse has taken the children for a holiday or to visit family and now refuses or fails to return the children to you. This situation is similar to where there are no Court Orders in place.
The above scenario may be further complicated if you are not a parent but a grandparent or step-parent or another family member caring for the children and is seeking the children’s return to you.
In each of the above scenarios, if the children are not returned to you, you can seek a “Recovery Order” from the Family Court. This is a Court Order for the children to be returned to you and gives Police the power to search for, locate and remove a child from the parent or person who is holding the child.
Can I apply for a Recovery Order?
Under Section 67T of the Family Law Act, you can apply for a recovery order in relation to a child if you are:
- a person with whom the child is to live under a parenting order; or
- a person with whom the child is to spend time under a parenting order; or
- a person with whom the child is to communicate under a parenting order; or
- a person who has parental responsibility for the child under a parenting order; or
- a grandparent of the child; or
- any other person concerned with the care, welfare or development of the child.
The reference to a “parenting order” above refers to a Court Order made by the Family Court. However, if you do not have a “parenting order” in place, you can still make an application for a recovery order if you are a “person concerned with the care, welfare and development of the child”.
From the outset, it is best that you seek urgent legal advice as to your rights as a parent and the available legal avenues specific to your situation.
Essentially, a Recovery Order is an order commanding the Australian Federal Police, and the Police Force of each state and territory to “recover” and return the child to the other parent.
In the extreme situation, where it appears that one parent has abducted the child, or the other parent cannot be located or the children’s whereabouts are not known, you can apply for an urgent recovery order for the child to be returned to you and for a location order, for the other party’s whereabouts to be provided to the court.
If you are eligible to apply for a recovery order, the next step is to prepare the necessary application and supporting affidavit for filing with the Family Court. If the matter is urgent such as when the child’s well-being is at risk, you would need to address these issues in your affidavit so that you can have the matter heard in the Family Court on an urgent basis.
Where one parent has taken the children overseas and has failed to return the children, this makes the situation far more complex. The first question is to determine whether the children have been taken to a country that is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (HCCAICA). If this is the case, then parenting or recovery orders made by the Family Court in Australia will be recognised by the country where the children are located, and the parent can be made to return the child to Australia.
However, if the country where the child is located is not a signatory to the HCCAICA, whether you can succeed in recovering the child will depend on the laws of that country and your right to recover the child. In certain cases, as a result of citizenship, gender, religion or ethnicity and the laws in place in that country, you may find that it is difficult to obtain a Court Order or the assistance of government agencies for the child to be recovered and returned to you in Australia.
At Robertson Hayles Lawyers, our family lawyers have assisted parents and other carers, such as grandparents, to obtain recovery orders in many different situations including where the other parent has failed or refused to return the children or has relocated to another town within Western Australia or to another state or territory without court orders or the consent of the other parent and in cases of abduction where the other parent is in hiding with the children.
We understand that in applying for Recovery Orders, speed in taking your instructions, preparing the court documents and listing the matter for a hearing in the Family Court is paramount and our family law team is available to act at short notice to assist you with recovery orders.
For all enquiries, please get in touch with the family lawyers at Robertson Hayles Lawyers at (08) 9325 1700 or by email at firstname.lastname@example.org or via our contact form on our website, and we will be happy to assist you with your family law matter.