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.
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.
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:
- an order that the children’s passports be held at the Court.
- 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.