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What to do if your child is abducted?
An issue often central to family law matters is that of “child abduction”. Whether your child has not been returned to your care in accordance with parenting arrangements or orders, or a child has been relocated within Australia or overseas without consent, you should not delay in seeking legal advice. It is often imperative to act quickly in these circumstances to recover a child.
Once the immediate situation is returned to the status quo, it is vital to get parenting orders in place (if they are not already). Other appropriate action may include filing a contravention application if there has been a breach of existing orders.
If your child has been taken from your care or not returned to your care in accordance with a prior agreement or parenting orders, you do have options to seek their return.
These options will typically involve filing an application with the Federal Circuit and Family Court of Australia (FCFCO). The types of orders you might seek, and the urgency with which an application will be made will depend on a number of factors including such things as the history of your matter, the age and/vulnerability of children, and any risk factors.
Parenting Orders
If you do not already have parenting Orders in place, it may be appropriate to obtain them.
We can assist you in preparing an Initiating Application with supporting documents, to be filed in the Federal Circuit and Family Court of Australia. The urgency of your matter will determine how we approach the case, and what supporting documents we will need to file.
Compliance with pre-action procedures is ordinarily required, which would usually entail attending Family Dispute Resolution and obtaining a Section 60I certificate. We can assist you to apply for an exemption from this requirement, if the circumstances warrant this.
You can apply for a recovery order, even if there are no existing parenting orders in place (but you will need to seek parenting orders at the same time).
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Recovery Order
A recovery order is an order that allows the Federal Circuit and Family Court of Australia (FCFCO) to direct that a child be returned to a parent, someone with parental responsibility for the child, or the person a child ordinarily lives with. Recovery orders can also be sought to facilitate a child being delivered to a person with whom the child is due to spend time or communicate with pursuant to a parenting order.
Section 67Q of the Family Law Act 1975 (Cth) sets out what a recovery order can do, and how a recovery order can be actioned. Typically, a recovery order will be sought that directs the authorities (ordinarily the Australian Federal Police) to stop and search vehicles for the purpose of finding a child, to deliver the child to a particular person, and even direct that an arrest warrant be issued for the person who has failed to return the child.
Often the warning of an impending recovery order is enough for a party to return a child, or make a child available. In practice, recovery orders often provide for a child to be returned or delivered voluntarily within a short time-frame – for example by 4pm that same day, with the recovery order to come into effect if this is not complied with.
Location Order
Location orders are often sought in conjunction with, or following a recovery order, particularly if a child cannot be found. A location order requires a person to provide the Court with information they might have (or learn) about the child’s location.
A Commonwealth Information Order is a type of location order that requires a Commonwealth (Federal) authority to provide information about the location of a child. This is commonly used to request that Services Australia (formerly Centrelink) provide any information they have (or learn) about a child’s location, or the location of a person that the child might be with.
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Publication Order
Family law cases are governed by very strict rules around the non-publication of details of proceedings and identification of parties to proceedings. Section 121 of the Family Law Act 1975 (Cth) makes it an offence to publish such information. However, in certain circumstances the Court may lift those rules to allow for particular details of a case to be published in the media to assist in locating a child.
If your child has not been returned to you, whether you have parenting orders in place or not, you should not delay in seeking legal advice.
If your child has been taken or not returned to your care, there may be a risk that they will be or have already been taken out of Australia. You may need to act with urgency to ensure that a child is not removed from the country, as it could be difficult to ensure their return. If they have already been taken overseas, you should seek legal advice as soon as possible.
It is generally an offence under the Family Law Act 1975 (Cth) (sections 65YA and 65Z) to remove a child from Australia where there are unresolved parenting proceedings on foot, or if there is an order that prevents that travel. Such offences carry a potential three (3) year term of imprisonment. It is important to note that there is an exception to the general prohibition on travel while proceedings are on foot, namely travel to escape family violence.
If your child has been taken overseas, your recourse may lie with the “Hague Convention”. The Hague Convention on the Civil Aspects of International Child Abduction is an international agreement that covers international parental child abduction. It provides a mechanism by which a child who has been abducted internationally by a parent can be returned to their country of habitual residence.
An application under the Hague Convention for the return of a child can only be made to or from a country that has signed the convention, and which Australia has recognised.
This means that the Hague Convention can only assist with the return of a child if the convention is in force between Australia and the country to which they have been taken. It is worth noting that many countries are not signatories to the agreement, including but not limited to India, Lebanon, Egypt, Vietnam and a number of others.