Recovering Your Child

February 2, 2018

With the long summer holidays drawing close to an end, disputes surrounding parents’ refusal to return children often appear to escalate at this time.

Examples of two common scenarios:

Scenario A: Where you and your ex-partner do not have finalised Parenting Orders, but you are ordinarily the primary carer of the child; and the other parent has refused to return the child as agreed.

Scenario B: If you and your ex-partner have Parenting Orders (interim or final) setting out care arrangements of the child, but the other parent has breached the Orders by refusing to return the child as set out in the Orders.

What should you do if you find yourself caught in ‘Scenario A’ or ‘Scenario B’?

  1. Negotiate

As a first course of action, you should try to come to an arrangement or agreement with your ex for the child to be returned to you as soon as possible. Set a deadline, preferably in writing. If you have engaged lawyers at this stage, your lawyer can assist you with this.

  1. Court

If the first step is not possible or your attempts at making such an arrangement fail, you may apply for a recovery order at Court. Although the Court itself is not a child recovery agency, a recovery order from the Court can authorise the police to locate and recover the child and to deliver the child to you.

If you do not know the location of your child, you may apply to the Court for an order to assist with locating your child. The Court can require government departments such as Centrelink and the Australian Taxation Office to provide information on the child or the other parent’s location. As a last resort, the Court may even order that the media publish details and photographs of the missing child and the person they are believed to be with.

If there is a real threat that your child will be removed from Australia, the Court has the power to intervene by making orders to:

  • Prevent a passport being issued if your child does not have a valid passport;
  • Have the child’s passport delivered to Court if someone else has possession of the child’s passport;
  • Prevent the child from leaving Australia by requesting that the Australian Federal Police put the child’s name on an Airport Watch List.

If your child has not been returned to you or if you have reason to suspect that the other parent might be taking the child overseas without your consent, you should seek legal assistance immediately as a matter of urgency. If you require any assistance, please contact our Family Law team.

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