Child Abduction / Recovery Orders
When a parent unilaterally relocates with a child, whether to another city or interstate, it is possible to recover the child by making an Application to the Court.
Where the location of the parent and/or child are unknown, it is possible to seek a location Order from the Court, addressed to Centrelink for address checks, or a Commonwealth Information Order, to determine their location and seek for the recovery of the child. This process is lengthy and costly and therefore should be used as a last resort in urgent circumstances. Often parents will relocate to a family or friend’s house so it might be best to make enquiries and determine the location that way prior to instituting proceedings, depending the circumstances.
In the situation where the location of the parent and child are known, an Application can be made to a Family Law Court for an urgent listing for a recovery order, and/or injunction compelling the parent to return with the child. If there is a risk the parent could or would either “go into hiding” with the child, or attempt to relocate internationally with the child to a country that is not signatory to the Convention on the Civil Aspects of International Child Abduction (“The Hague Convention”), then it might be reasonable for the Application to be heard “ex parte” (without informing the other parent). Where an Order is made “ex parte”, the Court will list the matter for mention to provide procedural fairness to the other party and provide an opportunity for a response to the Application.
A Recovery Order can be made by the Court regardless of whether there is an existing parenting Order in place. The Court has the jurisdiction to direct that the Australian Federal Police enforce the existing Order and recover the child.
If a parent has threatened to relocate with the child, or there is a real risk they might do so, it is also possible to apply for an interim injunction restraining that parent from relocating with the child. Another, less costly, way of preventing unilateral relocation is to seek the parent to provide an Undertaking to the Court that they will not remove the child from the city or state, as the case may be, without written consent from the other parent. It is important to act promptly in these situations and obtain legal advice from a family law practitioner as soon as possible.
WHERE TO NEXT?
Taking the next step and contacting a family lawyer can be scary. Our lawyers will make you feel comfortable so you can talk about your situation. But first, ask yourself, Do I really need a lawyer?