WHAT CAN I DO IF MY EX-SPOUSE HAS TAKEN OFF WITH THE CHILDREN WITHOUT MY PERMISSION?

When there are Court Orders

If there are already Court orders in place for the children to reside with you and the children have still not been returned to you, you should first attempt to speak with your ex-spouse about any arrangements for the return of the children. If you are unable to speak or ex-spouse refuses to speak with you about the return of the children, you can then apply to the Court for a Recovery Order. Recovery Orders may permit the Federal and State Police to return your children to you.

When there are no Court Orders

If you don’t have any Court orders in place, you should first try to speak and come to agreement with your ex-spouse about where your children are to reside. Unless an exemption applies (urgency or family violence for example), you will likely be required to attend Family Dispute Resolution. If you and the other parent come to an agreement then enforceable consent orders may be filed with the court. If you and your ex-spouse cannot come to any mutual agreement, then you can apply to the Court for orders. It is advisable that at this time you also apply to the Court for long term Parenting Orders more generally. The Court will make Parenting Orders with regards to who is responsible for making long term decisions about the children (parental responsibility), where the children will live and when the children will spend time with each parent.

Ex-spouse has relocated with the children

Location orders

If your ex-spouse has relocated with the children, where you no longer are aware as to where your ex-spouse and children are you could firstly ask known friends and relatives to see if you can safely locate your ex-spouse. However if you are unable to make reasonable inquiries as to where your ex-spouse has relocated with the children, or where your inquiries are unsuccessful, you can apply to the Court for a Location Order. Location orders can require an organisation or a person to provide the Court with information about the location of the children. If the order is placed on a government body such as Centrelink, it is known as a "Commonwealth Information Order".

Family law watchlist

If you have concerns that your ex-spouse may be taking or sending your children outside of Australia you may wish to apply to the Court to have the Australian Federal Police place the names of your children on the Family Law Watchlist (also known as the airport watchlist). Once the Court has made orders, you will need to send a copy of the application along with any Court Orders to the Australian Federal Police, who will then take steps to prevent the children from leaving any point of departure (such as an airport).

Family Dispute Resolution

Family Dispute Resolution is a form of mediation

Wherever possible you and your ex-spouse should attempt to come to an agreement about your children prior to commencing court proceedings. Unless an exception applies, you and your ex-spouse will be required to attend a family dispute resolution prior to attending court. Family dispute resolution is a mediation process which is specific to family law matters. You will not be permitted to file an application in the Court registry without a certificate filed from an accredited FDR practitioner (known as a section 60i certificate) unless you have been granted an exemption.

What exceptions apply?

Exceptions apply where you may not need to attend family dispute resolution and obtain a certificate from a mediator prior to commencing Court proceedings. This includes where your application is for Consent Orders, where you are responding to an application, where the matter is urgent and where if the Court is satisfied that there are reasonable grounds to believe that there has been family violence or child abuse by a party, where there is a risk of violence by a party, or where there is a risk of child abuse if there were to be a delay. Also a certificate may not need to be obtaining where a party is unable to participate effectively, such as incapacity, or where a person has contravened and shown a serious disregard for a Court Order made in the last 12 months.

What if my ex-spouse has taken the children – do I still need to obtain a certificate from a mediator?

If you find that your ex-spouse has suddenly taken off with the children, it is likely you will be eligible to receive an exemption to obtaining a section 60i certificate. However you will need to prove to the Court that orders need to be made urgently. This should be clearly expressed in your affidavit where you provide the underlying reasons why the Court should consider making the return of your children urgently.