If your partner or a family member has taken your child without your knowledge or consent, has breached orders, or will not advise you of their residential address, urgent orders may be required from the Court.
The Federal Circuit and Family Court of Australia liaises with the Australian Federal Police to cause the immediate return of your child, if the Court finds it is in their best interests to do so. This is called a “Recovery Order” and is usually only sought in the case of emergencies or where there are reasonable grounds that the children are at risk of harm.
The Court is well connected with other government agencies who are equipped to locate your children or your former partner as appropriate. They assist with serving Court documents on your former partner so that they are aware of Court proceedings in respect of your children.
These applications are considered on a case-by-case basis as every circumstance is unique.
At Dorter Family Lawyers & Mediators, our specialist knowledge equips you to understand and navigate the family law process, to prioritise your children’s needs during a stressful and emotional time, and ensure the best outcome for your children.
Parental child abduction and breached orders
If your child normally lives with you and their other parent takes, conceals or detains them and refuses to return them to you (in the absence of your consent or authorisation of the courts), this constitutes parental child abduction.
Similarly, if you have parenting orders and the other parent is stopping your child from spending time with you or from living with you, pursuant to those orders, this constitutes a contravention of parenting orders.
In both scenarios, you may be able to apply for a recovery order.
What is a recovery order?
A recovery order is a court order that requires a child to be returned to:
- A parent of the child
- A person in possession of the parenting order which stipulates that the child is to live with, communicate with, or spend time with, that person, or
- A person who retains parental responsibility for the child
A recovery order has the authority to:
- Direct personnel, such as police officers, to take appropriate action to find, recover and deliver the child to one of the aforementioned people
- Provide directions for the day-to-day care of the child until they are returned
- Prohibit the person who initially took the child from once again taking possession of the child. In the case that the person removes or takes possession of the child again, they could be arrested (without warrant).
How is a recovery order implemented?
The Court itself is not a child recovery agency. Because of this, if the Court does make an order authorising relevant personnel to recover your child, you must give a copy of the order to that person. Generally, this will be the Australian Federal Police. Once returned, you will need to notify the Court as soon as practicable.
Who can apply for a recovery order?
Section 67T of the Family Law Act 1975 stipulates that you can apply for a recovery order if you are:
- A grandparent of the child,
- A person who has been granted parental responsibility for the child in accordance with a parenting order,
- A person with whom the child lives with, communicates with, or spends time with, pursuant to a parenting order, or
- A person concerned with the care, welfare, and development, of the child
What if my child isn’t found?
If you do not know the whereabouts of your child, you my apply to the court to issue other orders to help determine their location, including:
This requires a person or entity to provide information to the Court pertaining to the child’s whereabouts.
Commonwealth information order
This requires a Commonwealth (Federal) Government department (e.g. Centrelink) to provide information to the Court pertaining to the child’s whereabouts that is contained in the records of the Department.
Generally speaking, there are strict rules surrounding what information can be published about family law proceedings. A publication order partially lifts these publishing restrictions, thereby allowing the media to publish details about a specific family law case. Photographs of the missing child and the person they are suspected to be with may be included in the information that is released.
What if my child is going to be taken overseas?
If you believe that your child may be taken from Australia without your permission you should obtain legal advice and seek court orders to prevent this from happening, such as:
- Placing your child’s name on the Family Law Watchlist to prevent your child from being unlawfully removed from Australia, and/or
- Lodging a Child Alert Request at the Australian Passport Office to alert the Court if someone attempts to apply for an Australian Passport under the child’s name
What if my child has been taken overseas?
If your child has been removed from, or has not been returned to, Australia you may be able to receive legal assistance under the Hague Convention on the Civil Aspects of International Child Abduction. For more information on this, see our service page on International Family Law and Hague Convention <insert link>.
Here When You Need Us
If your child has been taken from you without your permission (or authorisation from a court) and you are seeking that they be returned to your care, it is important to seek legal advice from a specialist family lawyer as soon as possible. At Dorter Lawyers & Mediators our team is here to help you navigate the process.
With proven experience in parental child abduction, Dorter Family Lawyers & Mediators is committed to understanding your particular family situation, helping you prepare and file your application for court orders to achieve the lawful return of your child.
Speak to our specialised team at Dorter Family Lawyers & Mediators for tailored legal aid and advice.