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Child Abduction and Family Law

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It can be a terrifying moment for parents when they discover that their partner or ex has taken the children somewhere and cannot be contacted or located. If you believe that your partner or ex has taken your children and intends to flee with them, you should immediately contact the police emergency services on Triple Zero (000), and then contact a family lawyer experienced in recovery matters.

Often, whilst overwhelmed in this moment, parents can feel like they are powerless and there is not a lot they can do. This is not always the case and recourse is available to locate, and if necessary, recover children who have been taken.

 

If They Are Still in Australia

If you know your ex has taken the children but is still located in Australia, there are a few options available to you to assist in finding out where your children are and, if appropriate, having your children returned to you.

You do not need court orders to be able to have a child located and recovered. If you have a parenting plan in place (even an informal one) or so long as you are involved in the child’s life and have a hand in the child’s care, welfare and development then you will be able to make an application. This also applies to grandparents.

 

LOCATION ORDERS

A Location order is an order requiring a party to provide information to the Court regarding the children’s whereabouts.

A government agency (for example the police) can also provide information to the Court about the location of the children.

If a location or Commonwealth information order is granted, you will not be provided the information and, if you are legally represented, then your lawyer will only be able to receive that information if there is a court order allowing them to do so.

 

COMMONWEALTH INFORMATION ORDERS

A Commonwealth information order is an order to government entities requiring that they provide information (if they have any) to the Court regarding a child’s location.

 

RECOVERY ORDERS

Keeping in mind with all of the above orders, if the court believes it appropriate that the court’s paramount consideration is the best interest of the children, then it will make a Recovery Order.

A Recovery Order allows appropriate agencies (such as the police) to do what is required to find and recover a child and return them to the applicant, if they are a parent or have responsibility of the child. You do not need to have Court Orders in place for a recovery order to be granted.

If a recovery order is granted you will not be able to be present during the recovery and would be informed afterwards if it was successful and how to arrange handover of the children.

 

If They Have Left Australia

It is a criminal offence punishable with 3 years immediate imprisonment to remove a child from Australia or (if already removed) stopping a child from returning to Australia.

There are very limited grounds to remove, or keep a child removed, from Australia.

If this has occurred, the police have specialist units whose duty is to recover children who have been abducted. Australia and a large number of other countries are signatories to the Hague Convention on the Civil Aspects of International Child Abduction, which allows for the recovery and return of children under the age of 16 taken to one of these countries.

If your ex has taken your children internationally, you will need to obtain a Recovery Order to direct the appropriate authorities to locate and return your child to you.

If you do not know the location of the child or the other party, then you may need to consider obtaining location orders and/or Commonwealth information orders.

 

What if I’m Worried They May Take the Kids and Leave Australia?

If you have genuine concerns that the other party is going to take the children and take them out of Australia, you are able to seek Family Court Orders preventing them from being able to do so.

If appropriate, the Court has a number of options available to stop a party from removing children from Australia. These options include:

  1. an order that the children’s passports be held at the Court.
  2. the children be put on the Australian Federal Police (AFP) Airport Watchlist. If Children are included on the Airport Watchlist, it means that if someone tries to remove them from Australia they will be flagged on the system and the AFP will be alerted to potential movement of the child.

The Court will ordinarily provide Watchlist Orders to the AFP on the same day that the Orders are made. Airport Watchlist orders can be granted on an urgent basis, even if the Court is not open at the time you find out that the other party is going to be taking them.

If you do have concerns that the other party is going to take your children, you should contact police emergency services on Triple Zero (000) immediately and then contact a lawyer during the day, or if after-hours first thing the next day.

Carter Dickens Lawyers is able to arrange urgent client meetings with same-day appointments as needed. We have experience in making urgent court applications and the have acted in such matters in the past.

Contact our Office on (08) 9408 5212 for a no obligation initial consultation and one of our experienced lawyers will be able to discuss the above matters with you as well as broader family law matters.

 

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.

Co-Parenting after Separation? Welcome to the Apps of the 21st Century!

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Relationships break down for many reasons and unfortunately, it is not always on good terms. However, being able to amicably co-parent with your ex-partner is very important for children and family dynamic. Having potentially lost the stability of having a close family unit, it is important that children see their parents communicating and working towards advancing the children’s best interests.

Traditionally, co-parenting has been difficult and communication breakdowns are common. However, with the development of smartphones and new apps there are now several options to assist those endeavouring to co-parent in the 21st century.

 

What are co-parenting apps?

A co-parenting app is an application that you are able to download onto your phone or tablet which aims to provide easy communication regarding the well-being and needs of your children. They have in-built features such as calendars and schedules, as well as access to important medical information about the child/children. They may also have features that track shared expenses and payments, or reminders and alarms to help both parents keep up with the designated schedule.

 

What are the benefits of co-parenting apps?

Co-parenting apps seek to bring a sense of organisation and peace to what can be a very overwhelming and difficult process. Co-parenting involves a large number of considerations including schedules, appointments, expenses, exchange places/times, health concerns of the children, special occasions such as birthdays and holidays, and so much more.

Both parents being able to access all of this information in one place will bring more organisation and clarity to the co-parenting situation. Being able to coordinate both the big things, such as birthdays and sleeping arrangements, as well as the smaller things, such as school events and excursions, in one application may help to soften some of the difficulties of co-parenting.

Co-parenting apps may also be successful in minimising conflict that may arise if the parents were to privately text one another or speak through a third-party. By encouraging parents to resolve smaller issues regarding the children between themselves and through an app, there may be less disagreement and less interactions with the court. This is also likely to have a flow-on effect and positively impact the psychological well-being of the child.

 

Examples of co-parenting apps

SharedCare

This app contains features such as a shared calendar, care arrangements (including requests to swap days), an expenses recorder (including reimbursement requests), and a group news feed where other carers including grandparents, nannies and aunts and uncles can keep updated on important milestones and news.

 

Parentship

Parentship utilises features including custom calendaring, digital documents, reminders, and a smart profile that contains everything about the child in one place.

 

Cozi

Cozi is a free app with a hassle-free family calendar and other features such as being able to create to-do lists and even share recipes where children may have allergies or dietary requirements.

 

Our Family Wizard
A popular app used globally with a great deal of options and functions, designed from the ground up for difficult situations in which the Family Court is involved. This app can also give children a controlled level of access to information, as well as third parties and legal practitioners, where relevant.

 

We note that this is just a small sample of the various applications on offer.

 

Are there any concerns?

Some co-parenting apps may require a small payment or a subscription fee. Also, co-parenting apps will only be successful if the parents are able to set aside their personal conflicts in order to put the children’s interests at their very highest concern.  Co-parenting apps may not be appropriate in all cases.

Unfortunately, these apps will not resolve all disputes that may arise in parenting matters; however, they allow for effective communication and synchronised scheduling which aims to benefit the children in the long term. Our lawyers can advise whether a co-parenting app is the right fit for your matter.

If you have concerns regarding a Parenting Matter, please contact Carter Dickens Lawyers on (08) 9408 5212 and we will endeavour to provide you with comprehensive legal advice to assist in your matter.

 

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.

 

Social Media as “Evidence” in the Family Court

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The use of evidence obtained through various social media outlets has become a feature in many Family Court proceedings around Australia. Evidence of private conversations, photos, videos, shares and other social media activity we almost all engage in has found its way into the realm of admissible evidence.

Unfortunately, most people do not understand the potential repercussions of placing their life, private affairs and images in the public arena. We will explore the impact of social media as “evidence” and provide insight into the admissibility of this type of evidence in Western Australia.

 

Admissible Evidence in Family Law

Family law proceedings allow parties the opportunity to present “documents” as evidence to the judicial officer through tendering it to the Court. Judicial officers may then decide how to weigh evidence that has been admitted; whether to give any weight to normally inadmissible material; and whether to direct the parties to provide particular evidence.

Under Section 2B of the Acts Interpretation Act 1901 (Cth), a “document” is defined as any “record of information”, including (amongst other examples):

  1. anything on which there is writing; and
  2. anything from which sounds, images or writings can be reproduced with or without the aid of anything else.

Given this interpretation, content from social media such as Facebook, Instagram, Snapchat, LinkedIn, Twitter and WhatsApp could be regarded to be within this definition.

Note that the Evidence Act 1906 (WA) and the Evidence Act 1995 (Cth) each set out their own ways that social media can be used as evidence. Beyond merely satisfying the definition of an admissible “document”, there are further limitations to the potential admissibility of evidence. They are:

  1. Relevance
  2. Judicial Discretion
  3. Varying weight given to the evidence

 

Relevance

The starting point for any evidence is that it must be RELEVANT. That is, the social media content must be considered by the Court to be something that relates to the existence of a fact in your case. Broadly, relevant evidence will relate to the issue in dispute, support your claim and be able to advance your claim. If any of these fails, it is unlikely to be considered sufficiently relevant.

 

Judicial Discretion

The Family Court has a broad DISCRETION, pursuant to Section 69ZT(1) of the Family Law Act 1975 (Cth), to exclude the provision of ordinary rules of evidence to child-related proceedings. This discretion essentially allows courts to render social media evidence, which would otherwise likely be deemed hearsay or opinion evidence, to be admissible.

 

Weight of Evidence

Despite being admitted, social media evidence may be attributed the WEIGHT a judicial officer sees fit pursuant to 69ZT(2) of the Family Law Act 1975 (Cth). Recent case authority has shown that it is likely that the Family Court will be cautious when attributing weight to social media content given the nature and reliability of this type of evidence.

 

Although social media may be considered admissible evidence, the ability of a party to admit this evidence may be limited by the varying rules of evidence and judicial discretion. Carter Dickens Lawyers would advise parties to protect themselves by limiting social media which may be relevant to their proceedings.

In addition, parties should note that it is an offence to publish any images or posts which identify a party or child to family law proceedings (Family Law Act 1997 (WA) s 243; Family Law Act 1975 (Cth) s 121).

 If you have a Family Law matter and social media activity is of concern to you, please contact us on 08 9408 5212 for a free 15-minute phone consultation.

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific case in question.

Relocation Orders

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Following separation proceedings, it is often the case that each parent will need to find somewhere to live. This may involve one parent wanting to move with their child to another city, state or country. Under the Family law, moving a child away to another city or country is known as relocation. The relocating parent can ask the court for a relocation order, which will allow them to move with the child. The other parent can ask for an order to stop the relocation of their child. Where a proposed move will significantly prevent or limit a child from spending time with a parent or another significant individual a court may refuse a request to relocate a child.

When assessing any proposal bought before it to relocate the residence of a child, whether it be internationally or otherwise, the court will likely have regard primarily to the interests of the child. When determining this, the court generally employs a three-stage process of analysis.

Firstly, the court will identify the nature of both parties’ proposals regarding where the child should live.

Secondly, the court will take into account the relevant considerations established in section 60CC of the Family Law Act 1975. The court will look at the advantages and disadvantages of each of these considerations in respect to each proposal that is put forward by the parties. Whilst the considerations of the court are extensive, the court may consider:

  1. the benefit to the child of having a meaningful relationship with both of the child’s parents;
  2. the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
  3. the views expressed by the child;
  4. the nature of the child’s relationship with each parent and other persons, including grandparents or relatives;
  5. the extent to which each of the child’s parents has participated in the long-term issues relating to the child, spent time with the child and communicated with the child;
  6. the likely effect of changes to the child’s circumstances; and
  7. the practical difficulty and expense associated with having a child spend time and communicate with a parent, and whether such difficulty will impact a child’s personal relationship with the parents.

Finally, the court will then identify the party’s proposal which is preferred and make the relevant relocation orders. The decision is often made having regard to which proposal best ensures the child’s interests.

Do you need Legal advice concerning a relocation orders? Our lawyers can provide you with comprehensive legal advice. Please contact our Office for an appointment today.

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.

How to Obtain or Prevent the Issuing of Children’s Passports

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In order to travel outside of Australia, both children and adults, regardless of age, are required to hold a valid Passport. Unfortunately, due to marriage breakdowns and other such factors, the process of applying for a passport for your child can become a difficult exercise. We offer expert legal advice to assist you in either applying for, or legally preventing, the grant of a passport to your child.

What is a ‘child’?

A child is defined in the Australian Passports Act 2005 (‘APA’) as a person under 18 years of age who has never been married. Parental responsibility subsists over ‘children’ and as a result, certain consent requirements must be satisfied prior to the issuing of a child’s passport.  In addition, each passport application must be supported by original documents to prove the child’s identity and citizenship.

Consent requirements to Obtain Children’s Passports:

The general rule is that one of the following is needed to apply for a children’s passport:

  1. The written consent of the person or persons that have parental responsibility of the child;
  2. The written consent of BOTH of the child’s parents; or
  3. An Australian Court Order permitting the child to have an Australian Passport.

Generally, people with parental responsibility are the parents named on the child’s full birth certificate; their parental responsibility can only be removed by an Australian court. If only one parent is named on the child’s birth certificate, but another person has parental responsibility, that person must also provide consent before a passport can be issued. In some cases, other people or entities (such as welfare agencies) have parental responsibility under Australian law.

What if consent cannot be obtained

The only way to guarantee the issue of a passport to a child without full consent is with an Australian court order. These orders would permit the child to have an Australian passport, travel internationally or live or spend time with a person outside Australia.

Applications for passport orders are dealt with as ‘Parenting Orders’ under the Family Law Act 1975. Before these orders are made, the Court in their discretion must satisfy themselves that it is in the best interests of the child for a passport to be issued.

What options outside of Court do I have?

If you are unable to get the ‘not so co-operative’ other parent to sign off on a passport and are seeking to avoid the process of a Family Court application, there may be exceptions to the rule that apply to you.

What exceptions?

You need to be able to demonstrate that there are ‘special circumstances’ which pertain to your case (see APA section 11(2)). These include:

  1. An inability to contact the non-consenting parent for a reasonable period of time;
  2. If there is a family violence order against the non-consenting parenting;
  3. The child is the subject of a welfare order (i.e. child protection);
  4. The child needs to travel urgently for a family crisis.

Unfortunately, there are no guarantees that an application will be approved. This may be due to the Minister rejecting the application for failure to meet the ‘special circumstances’ threshold, or via the Minister refusing to apply their discretion in favour of the matter being heard by a Court. A review of the Minister’s decision may be available in certain circumstances.

 How can you Prevent the issuing of a passport for your child?

Consenting to your child’s passport and travel plans can be inherently risky where there is the conceivable threat of child abduction. Although not every situation will pose this danger, we at Carter Dickens Lawyers understand that for some this threat may indeed be a terrifying reality.

A primary method of preventing this situation is through withholding consent in the other parent’s application for a children’s passport. However, should the risk that your child will be relocated or travel overseas persist, you should get urgent legal advice and contact one of our lawyers for an initial appointment and action plan. We can assist you in applying for relevant Court orders, including injunctions, recovery orders and location orders.

We understand the stress and time constraints that are often associated with these types of applications. With this in mind, Carter Dickens Lawyers aims to both advise and make you fully aware of your rights, obligations and risks pursuant to children’s passports applications.

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.

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Phone: (08) 9408 5212

info@cdlawyers.com.au