There are arguably few more emotional times in a person’s life than during a relationship break-up, particularly where children are involved. The stress of the situation can often impair a person’s ability to make rational decisions, as is often the case when one parent decides to remove a child or children to another location without the other parent’s consent.
There are also circumstances where one parent will make this decision because they believe the other parent to be abusive or potentially violent, or they have a legitimate desire to be closer to the support of their family after the domestic split.
In any event, relocating a child without the permission of the other parent can result in a court making a Recovery Order that can be enforced by police to return the child to the parent who didn’t remove the child (or another recognised caregiver, such as a grandparent), in his or her original location.
At what stage can a Recovery Order be made?
It’s important to distinguish between the different circumstances involved in individual family cases, in particular, the difference between situations where there are court orders already in place, where there are current proceedings before either the Family or Federal Circuit courts, or where neither of those situations apply.
In the first instance, under Section 67K of the Family Law Act 1975 an application for a Recovery Order can be made so that the child can be returned to the care of:
- a person who the child lives with, spends time with or communicates with as stated in a parenting order;
- a person who has parental responsibility for the child in a parenting order;
- a grandparent of the child; or
- a person concerned with the care, welfare and development of the child.
A Recovery Order will also prevent a parent or other person from trying to again collect and withhold the child.
In the situation where there is already an application before the court for parenting orders, then the party seeking recovery of the child can file an urgent application in the case seeking a Recovery Order. If it’s believed there is a risk of harm to the children, this application can be heard ex parte, meaning the court will hear it in the absence of your former partner and without providing any notice of the application to them.
Where there are no current court proceedings, the parent seeking recovery can make an application to the court to make both parenting orders and a Recovery Order.
A party seeking a Recovery Order will need to file an affidavit in support of the application and the court, in considering it, will determine what is in the best interests of the child.
What happens if a child is relocated overseas?
In the event that one parent removes a child to a foreign location, the circumstances become more complicated in terms of recovering the child.
The Australian Central Authority within the Federal Attorney-General’s Department provides assistance to parents seeking to recover a child removed to an overseas location and administers the 1980 Hague Convention on the Civil Aspects of International Child Abduction, a multilateral treaty to which Australia is a signatory and which provides a lawful procedure for seeking the return of abducted children to their home country.
An application for the return of a child taken overseas can be made to the Authority if the following criteria are met:
- The child is under the age of 16 years;
- the applicant has “rights of custody” in relation to the child;
- the applicant was exercising their right of custody at the time the child was wrongfully removed from, or retained outside, Australia;
- the child was usually a resident in Australia immediately before they were wrongfully removed from, or retained outside, Australia;
- the child has been taken to a country which is a party to the Hague Convention;
- the child has been taken from Australia or kept in another convention country without your consent, or without a court order.
A certified copy of the child’s birth certificate, photographs of the child and the person who removed the child, a certified copy of any Parenting Orders, and a copy of your Certificate of Marriage and Divorce Order (if applicable) must all accompany any application.
The importance of legal assistance
In any of the scenarios outlined above, the issues are complex and highly charged. The advice and assistance of an experienced legal representative can be essential in expediting any matter involved in the recovery of a child who has been removed from you without consent. Documentation, timeframes and court appearances are all made somewhat easier with a trusted legal advocate by your side.
McNamara Law has wide experience in legal matters involving families, providing personalised and caring service in situations such as those outlined above. We offer an initial half-an-hour free consultation to discuss your issue and canvass all possible options available to you to protect your rights and those of your children. Call our Ipswich lawyers today on 1300 285 888 if this article raises any questions or concern.
