Location & Child Recovery Orders

Recovering an 'abducted' child

There are various types of applications to the Family Court and Federal Magistrates Court which are commonly made urgently. The most obvious is in the situation where children have been "abducted" by one of their parents who has gone into hiding so as to deprive the other parent of retrieving or spending time with a child. In this situation urgent action must be taken, particularly if there is any chance that the children might be taken out of the Commonwealth.

In a situation of extreme urgency it may not be possible to prepare any documentation in advance. An application in a case might be handwritten in the precincts of the court and all evidence given orally. An affidavit could be prepared for a subsequent return date, once urgent ex parte orders had been made.

What types of orders can be made?

In a situation where a child has been 'abducted', the following orders may be applicable:

Parenting Orders

Order relating to the long-term and day-to-day responsibility for the care, welfare and develop-ment of the child (if there were not already an order on foot);

Location Order

An order requiring a person to give the Court information about the child’s location

Recovery Order

An order requiring a person to return a child to a person or location.

Commonwealth Information Order

An order made under section 67N of the Family Law Act requiring Centrelink (and perhaps the Health Insurance Commission) to provide to the registrar of the Court any information the department might acquire as to the whereabouts of the child and the "abducting" parent.

Publication Order

An order allowing the media to publish details and photographs of the missing child and the person they are believed to be with. However, each case is different and the terms of the publication order can vary. This is usually a last resort and you should seek legal advice first.

What is a Recovery Order?

A recovery order is defined in section 67Q of the Family Law Act 1975. It is an order of the Court that can require a child be returned to a:

• parent of the child
• person who has a parenting order that states the child lives with, spends time with or communicates with that person, or
• person who has parental responsibility for the child.

A recovery order can authorise or direct a person or persons, such as police officers, to take appropriate action to find, recover and deliver a child to one of the people listed above. As well, a recovery order can provide directions about the day-to-day care of a child until the child is returned or delivered.

A recovery order can also prohibit the person from again removing or taking possession of the child. In these cases, a recovery order can authorise the arrest (without warrant) of the person who again removes or takes possession of the child.

Who can apply?

You can apply for a recovery order if you are a:

• person who the child lives with, spends time with or communicates with as stated in a parenting order
• person who has parental responsibility for the child in a parenting order
• grandparent of the child, or
• person concerned with the care, welfare and development of the child. For example, you may be the person who the child lives or spends time with but there is no parenting order that states this.

How to apply?

An application for a recovery order should be filed in the Federal Magistrates Court. If you have a current parenting case in the Family Court, the application should be filed in that court. If you do not have a current parenting order, you should apply for one at the same time as applying for a recovery order.

On the application form, you must say what orders you are asking the Court to make.

For example:

The Marshal of the Court, all officers of the Australian Federal Police and all state and territory police officers are requested to find and recover [child/ren & date of birth] and deliver the [child/ren] to the [father/mother/other] and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the [child/ren] may be found.

You must also file an affidavit to support your application. You should include details of the following points, if applicable:

• A brief history of the relationship between you and the person the child is presumed to be with
• A list of previous court hearings and family law orders
• Details about the child and where he/she usually lives
• How and when the child was taken from you or not delivered to you
• Where the child might be and the basis for that belief
• Steps (if any) that have been taken to find the child
• Why it is in the child’s best interests to be returned to you
• The likely impact on the child if a recovery order is not made
• Any other factors relevant to the case.

Your chances of recovering the child will improve if you have information about where the child is likely to be. You should collect as much information as possible to help authorities find and return the child.

Checklist: Recovering a child

Once the necessary orders have been obtained the Applicant must:

1. Deliver a sealed copy of the location and recovery orders to the federal and state police. The court will not do this. The police will require sufficient information to enable them to identify the child and the Respondent;
2. Serve an order under section 67N of the Family Law Act (in Western Australia, Family Court Act section 147) on Centrelink (and if applicable the Health Insurance Commission or other government department or instrumentality);
3. Where the Respondent holds the child's passport (if there is one), seek an order, pursuant to section 67ZD of the Family Law Act (in Western Australia, Family Court Act section 163), for the surrender of the passport to the registrar of the Family Court;
4. If there is any possibility that a child might be taken out of Australia, have the applicant make a statutory declaration under section 65ZA or section 65ZB of the Family Law Act ( in Western Australia, Family Court Act section 109 and section 110) and serve it as quickly as possible on the owner, charterer or agent of a vessel (including aircraft) on which it is anticipated the child might be removed from the country. Sections 65ZA(4) or 65ZB(4) set out the material which should be included in such a declaration; and
5. Where there is a possibility that a child may be taken out of the country, and there is a parenting order in force about with whom the child is to live, have the child's name placed on the watch list main-tained by the Australian Federal Police (AFP). Notify the AFP in writing (by fax if urgent) of the order and of the possibility of the removal of the child from Australia. Give a description of the child, together with a photo if possible and any available details of the respondent's passport number or probable destination. The AFP have a form which can be completed and forwarded with a request for entry onto the watch list. See the Family Law Kit on the AFP website: www.afp.gov.au.

Note that solicitors need only fax interim applications and affidavits to the AFP for the AFP to place children on the watch list.

How to put a child's name on the airport watch list

To place a child's name on the watch list you will be required to obtain a Court Order or an application for an immediate order (often referred to as a Restraining or Retention Order) that directs the AFP to place the name of the child on the Airport Watch List. The direction from the Court must be specific and not implied.

A certified copy of the Court Order must be provided to the AFP.

The Court Order can be issued by the Family Court of Australia, the Family Court of Western Australia, the Federal Magistrates Court or a Local Court that exercises jurisdiction under the Family Law Act 1975. The AFP Family Law Teams prefer the following wording for the court order:

"That until further Order each party, (First Name, Second Name, SURNAME & Date of Birth of each party) their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child/children (First Name, Second Name, SURNAME & Date of Birth of each party) from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name/names of the said child/children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's/children's name/names on the Watch List until the Court orders its removal".

If either party desires to take the child out of the Commonwealth of Australia, they will only be permitted to travel with an Order of the Court. If there is still a genuine need to keep the child on the Watch List, the Court can make an Order which allows travel for a certain period of time with a certain party.

How long does a Watch List Alert last?

Unless the Restraining Order is discharged, the Watch List Alert will still activate if an attempt is made to travel. That is why it is important to advise the Family Law Team in your State/Territory of your intentions to travel to seek a variation to the Court Order in plenty of time (where possible one week) prior to intended travel to prevent lengthy delays prior to departure.

Get legal advice

You should get legal advice before deciding what to do. A lawyer can help you understand your legal rights and responsibilities, and explain how the law applies to your case. A lawyer can also explain and help you reach an agreement without going to court.

You can get legal advice at:

• legal aid office
• community legal centre, or
• private law firm.

Disclaimer

The Family Law Blog provides general information only and is not provided as legal advice. If you have a legal issue, you should contact a lawyer before making a decision about what to do or applying to a Court.