When children are taken and not returned to their usual parent at the agreed upon time and location it can be cause for serious alarm. Questions like “Where are my children?” “Are my children safe?” “How do I get them back?” arise. The Court has a clear process for the recovery of children if children are kidnapped.
Recovery Order
A recovery order is an order of the Court designed to secure the safe return of the taken child. The order takes into account the best interests of the child or children. As per section 67T of the Family Law Act 1975 Cth (“the Act”) a recover order may be sought by the person who is supposed to be caring for or communicating with the child as per court orders, and a grandparent or other person concerned by the welfare of the children.
In practice what this means is recover orders are only supposed to be applied for in situations where court orders, whether by a judge or by consent, have already been made. However, in effect, even when court orders have not been made, similar orders may be sought seeking the return of the children where the child has been removed from their usual routine.
Urgent Recovery Applications
If a child has been taken from a parent, then the parent who usually cares for the child may file an urgent recovery application in the Federal Circuit Court of Australia. If there are other issues such as serious concerns about domestic violence and risk of harm, the parent may wish to consider filing in the Family Court of Australia.
Urgent Applications are considered at the registry at the time of filing. If the Registrar considering the applications considers the application truly urgent, the Application could be heard ex parte (i.e without the parent who took the child) on the spot. On other occasions the Registry may shorten the time required to serve the other parent.
Overseas Abduction
On some occasions, the concern is not where the child is in Australia, the concern is whether the child will be taken overseas. Where the child has a passport, and the parent who has taken the child is deemed to be a flight risk it is imperative to put on the urgent application as soon as possible. As part of the orders sought in the application, the child should be placed on the airport watchlist to prevent them from leaving the country.
The effect of this, is that once the Australian federal police are notified about the court order that the children is restrained from leaving the country then, if there is an attempt to remove the child from the country, the child will be stopped at customs.
If the child is already overseas, then the ease of return depends on what country the child is in. Countries, such as New Zealand, Macau and Zimbabwe, which have ratified the Hague Convention on the Civil Aspects of International Child Abduction have an agreement with Australia that their local law enforcement and will assist in the recovery of the child.
Practical effect of a Recovery Order
When a recovery order is made it is usually made with a location order. That for example the police, are authorised to find the child or take steps to find the child and then take the child back. The recovery order is served on the parent that took the child. Orders may also include a warrant for the arrest of the parent that took the child and orders regarding legal costs.
If you have any questions regarding the recovery of children or are concerned about proceedings commenced against you or your clients please contact Andrea Harrold a aharrold@franklaw.com.au.
This is not legal advice.
Photo by Michał Parzuchowski on Unsplash
