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What do I do when my child has not returned to my care?

Parenting Orders provide for a child to live with one party and spend time with another or in some circumstances live with each party 50 percent of the time.

It happens that sometimes one party does not return the child. The party who does not comply with the Order is liable to be punished for a contravention of that Order. However, that does not of course get the child returned to the care of the parent with whom the child should be. There are incidences where the whereabouts of the parent is known, but the whereabouts of the child is not. In other incidences the whereabouts of the parent and the child are not known. In those circumstances, the Family Law Act makes provision for the location and the recovery of the child.

The first step is to apply for a Location Order. A Location Order can require for a person to provide the court’s Registry Manager with information that person has or obtains about the child’s location. This can also be directed to the Secretary of the Department or an appropriate authority of the Commonwealth Instrumentality to provide the Registry Manager of the court with information about the child’s location that is contained or comes into the records of the Department or Instrumentality.

The most likely department in these circumstances will be the Department of Human Resources, which will have information as to where the party resides because of payment made to the party. As usual, in deciding whether a Location Order should be made the best interests of the child is the paramount consideration.

The information provided on a Location Order is subject to strict control and the Legal Advisor for the Applicant needs Leave of Court to obtain that information. However, one will expect that leave would normally be granted.

Once the location of the child is discovered, then the aggrieved parent can then apply for a Recovery Order. A Recovery Order can require the return of the child to:

1.       A parent of the child;

2.       A person with whom the child is to live under a Parenting Order;

3.       A person with whom the child is to spend time with under a Parenting Order;

4.       A person with whom the child is to communicate under a Parenting Order;

5.       The person who has parental responsibility for the child.

It is usual when making a Recovery Order for the Court to authorise the Federal Police with such assistance as the police require. This could be by force if necessary and to stop and search any vehicles, vessels or aircraft and to enter and search any premises or place for the purposes of finding the child. A Recovery Order works when the child is in the jurisdiction, namely Australia, or if the child is in a Hague Convention country.

Not all countries are signatories to the Hague Convention. Parents should ensure that the other parent does not take a child out of Australia to a country that is not a party to the Hague Convention.

Contact Rita Derek of this firm for further advice.

Posted in: Derek Legal Blog at 22 August 18

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