My Ex-partner Has Taken my Children. How Can I Get Them Back
Within Australia
Under the Family Law Act, you can apply to the Court to make an Urgent Recovery Order to have your child returned to your care.
Who can apply for an Urgent Recovery Order?
The Act says that whoever has parental responsibility for the child can apply:
Recovery Order under the Family Law Act is an Order that requires the child to be returned to the person who has the parental responsibility of the child including:
Parent of the child;
Person with the Parenting Order which provides the child to live with them, spend time them or communicate with them; or
Whoever has parental responsibility for the child.
How do I apply for an Order?
You complete an application for Recovery Order to the Court;
You complete an Affidavit which is a sworn statement of the facts and how the child or children were taken;
You complete a Notice of Risk which explains your concerns for the safety and well-being of your child and any information that will assist the Court to expedite your matter;
The documents are taken to the Family Court where they are reviewed by a Registrar;
Your file will then be assigned to a Judge for Hearing.
What happens in Court?
Your solicitor will accompany you to Court where the Judge may ask questions about what has occurred;
When there is a risk to the child’s safety the Judge will allow the Hearing to go ahead “Ex-parte” which means that the Court will allow you to go ahead without the other party appearing;
If FACS (Family & Community Services) has been involved, the Judge will call for any material from FACS that is available relating to the child or children;
If the Judge is satisfied that the children are at risk and need protection, Orders will be made for your child or children to be collected and returned to your care;
The Recovery Order empowers the Police to restore the child or children to you.
What Happens after Court?
The Court’s guiding principle is that the best interests of the children must be the most important issue to be considered;
The Judge must be satisfied that the child or children are being properly cared for and that their parents are able to put the children first in settling the end of their relationship;
The Judge will set a date for an Interim Hearing where both you and your ex-partner will present your case;
If you do not already have parenting orders in place, the Court will make orders in the children’s best interests;
An Independent Children’s Lawyer (ICL) may be appointed so that the children’s needs, schooling and care can be prioritised.
How we can help
We have assisted many families to be re-united. As we are only 5 minutes’ walk from the Downing Centre local Court we can easily file documents and we can appear in Court as soon as the Judge’s Associate lets us know that the matter is in Court. We have frequently taken instructions for urgent applications from our client and filed the documents at Court in the morning with the Hearing in the afternoon seeing the children back with their parent that night.
Family Overseas
Both parents must sign a passport application for a child. However, sometimes a parent can agree to allow children to visit family including grandparents overseas who may be elderly or sick.
Problems sometimes arise when the other parent then retains the children refusing to bring them back from overseas.
Airport Watch
If you suspect that your ex-partner may abduct your children and take them overseas, the Court can order that their names be put on the Airport Watch List.
This means that if there will be an alert at every airport or points of departure including cruise ships so that when the children’s passports are presented, the officials will notify the Police and the children will be stopped leaving the country.
How do you put the children’s names on the airport watch list?
In a similar process to the Recovery Order, Application is made to the Federal Circuit Court for Orders to place the children’s names on the Airport Watch List. The Australian Federal Police are provided a copy of the Court Orders.
What if the children are already overseas?
We have had cases where children have gone overseas for a holiday and not been returned.
What is the Hague Convention?
The 1980 Hague Convention on the Civil Aspects of International Child Abduction is an international treaty to which Australia is a signatory and it sets out the protocol to arrange the return of children who have been wrongfully removed from their country of residence.
Each country that is a signatory has a central register to facilitate the location and return of children in these circumstances.
Who are signatories?
Not all countries are signatories to the Hague convention so it is important that you seek legal advice urgently so that the children can be put on the airport watch list.
The Australian Central Authority in the Attorney-General’s department administers the 1980 Hague Convention Treaty providing a lawful procedure to assist parents to contact children overseas.
The central authority cannot give legal advice. The process to organise the return of a child or children home is to make an application for access or for a court order.
Location Orders and Publication Orders.
It may be that you don’t know where your children are. The Court can make “Location Orders” which as their name suggests provide for information about where the child is located.
A Commonwealth Information Order is addressed to a Commonwealth Government Department such as Medicare or Centrelink which will give the Court information about where the child is located by accessing information in the government files.
A Publication Orders allows the Court to make an order that public media can publish photographs and any relevant details about a missing child and the person or persons that the child is believed to be with.
As always, the Court will be very careful to ensure the safety and best interests of the child who is the subject of the order.
How can we help?
It is hard to think of a more stressful time for a parent than when a child goes missing.
We are here to help you with the legal process to get the result you need as quickly as possible so that you can be reunited with your child without having to navigate legal forms and court procedure.
If you are concerned that your partner may remove your children from your care, don’t hesitate to contact us so that we can get procedures in place for your protection and that of your child or children. You can contact us on (02) 9261 1785 or visit us in our conveniently located Sydney CBD office on Castlereagh st.
*Articles on our blog are for your information and do not constitute official legal advice