The worst nightmare of any parent going through separation or divorce is that your ex-partner might ‘take off’ with your kids, within Australia or overseas. Perhaps it has already happened. In either case, you have legal rights. Here’s what you need to know about the recovery of children in family law.
Common reasons for moving without consent
Australian law mandates that a parent must have the other parent’s consent to move with a child following separation or divorce. Alternatively, they must have a court’s permission to do so.
In a child recovery case, the first task is to ascertain why your former partner and the kids relocated without the consent of yourself or the court. Common reasons include but are not limited to:
- The need to be closer to family (especially for mums with young children);
- involvement in a new relationship with someone who lives elsewhere;
- the need to escape violence and/or abuse.
Based on your circumstances, we can provide legal advice about your ability to make an urgent family court application for a recovery order.
What is a recovery order?
When your former partner moves with your child/children without your consent, the Family Law Act 1975 (Cth) allows the court to issue a recovery order. This type of order requires that your child/children are returned to the care of:
- A parent; or
- anyone with a current order for the child to live with, spend time with or communicate with; or
- a person who has parental responsibility for the child.
In this context, you should be aware that this type of order is applicable regardless of whether or not you have current court orders for the child’s care arrangements.
Something else to keep in mind is that a recovery order actually serves two purposes. First, it allows law enforcement to intervene. This is important because the police are best equipped to find the child/children and ensure they are placed in appropriate care. Secondly, it prevents any recurrences of unauthorised relocation.
Who can apply?
If someone other than a parent has concerns about the unauthorised relocation of a child, the question then becomes, who can apply for a recovery order?
A parent is not the only person who can legally do so. A grandparent or anyone else who is involved in the child’s care, welfare and development can also apply for the order.
Applying for a recovery order
The way in which you can apply for a recovery order depends on your situation. If you have pending or existing parenting orders, you can request a recovery order by lodging an application with the appropriate court. If you don’t have current parenting orders or a pending application for them with the court, you should file an application for both.
In either circumstance, you must file an affidavit in support of your request for a recovery order. This is because these orders are only granted at the court’s discretion and they will need to understand your situation.
Based on the information provided, the court decides what is best for the child. As part of this process, it considers whether the child should be sent back to their original place of residence and what living arrangements should be made.
Child recovery from other countries
To this point, we have detailed the child recovery process when relocation occurs in Australia. But what happens if your ex moves to another country and takes the kids without permission?
In such cases the Australian Central Authority within the Federal Attorney-General’s department is the legal forum for seeking the return of abducted children. However, the Central Authority can only process an application for the return of a child who has been taken overseas if:
- He or she is less than 16 years of age;
- you have “rights of custody”;
- you were exercising such rights when your child was illegally removed from Australia or kept in another country;
- your child was living here continuously immediately before he or she was illicitly taken out of Australia or kept overseas;
- he or she was taken to, or retained in, a country where the Hague Convention applies; and
- your child was removed from Australia or kept in another convention country without your consent, or without a court order.
You can find the application to be completed with the Australian Central Authority here.
Keep in mind that you may need to attach certain documents to your application. These may include:
- A certified copy of the child’s birth certificate;
- photographs of the child and the person who took him or her out of Australia;
- a certified copy of existing parenting orders;
- copies of your Certificate of Marriage and Divorce Order (if applicable).
In most cases, time is of the essence if your child has been taken overseas to a Hague Convention Country without your permission. This means you should submit your application to the Central Authority as soon as possible.
A last resort
Most of the time – in about 80 percent of cases – the failure to return a child to you as scheduled stems from miscommunication or misunderstanding. Accordingly, a simple text message or phone call from you should hopefully resolve the matter. Alternatively, if you and your ex aren’t on speaking terms, a phone call or text from a mutual friend may prompt a quick return of your child.
This means that seeking a court order for the return of your child or filing an application with the Central Authority should be considered a last resort.
If you are going through separation or divorce and have questions about this or any other related issues, we are here to help. Simply phone us on (07) 5571 1450 or contact us by email firstname.lastname@example.org to schedule an initial consultation with an experienced member of our family law team.