My Child hasn’t come home – Now What?
As we approach the end of the school year parents with custody agreements in place will be making plans for summer holidays. What happens if the other parent fails to return your child on time? Quick steps can be taken to ensure your child is located and returned to you.
Parents can seek a recovery order through the courts. To get a recovery order, you need to already have parenting orders I place. This is particularly relevant when one parent is in breach of the parenting orders which sets out where a child lives.
A Recovery order is usually made on an exparte basis, meaning the other party is not told in advance about the urgent application being made and is therefore not at court when the order is made.
In a recent case, parenting orders had been made for a child to live with his mother and to spend no time with the father, as the father was found to be an “unacceptable risk” to the child. Three months after those final parenting orders were made, the mother received a phone call from her child saying her was with his father. The father refused to return the child to the mother and even enrolled the child in a school near where he lived.
The court determined the father has shown a disregard for the court orders, and that he posed a risk to the child. The Australian federal police were then ordered to recover the child.
In cases where a recovery order is made, the court has to carefully consider any allegations made, against the need to preserve the child’s relationship with both parents.
In another recent case, the mother of a 9 year old child made an application for a recovery order, after the father had refused to return the child after school holiday time. The father alleged the mother’s parenting of the child was marked by neglect and that she had exposed the child to abuse by her current partner.
The court heard the police had made an application for a domestic violence order against the mother’s partner which had included an allegation that he had pushed the child and caused him to fall and suffer bruising. The mother also had a temporary DVO against her previous partner and the children were protected under that order.
The judge decided that while neglect and family violence figured prominently in the evidence, no allegation of violence was made against the mother. The court noted the child needed stability and should be allowed to continue his relationship with his older siblings, who lived with the mother.
The court ordered that the child be returned to the mother and that the mother not allow her partner to be alone with the child at any time.
What if it’s parent who can’t be found?
If a parent can’t be located, the court has the power to make orders that government department and organisations – For example, Centrelink – provided information to the courts. This is known as a ‘location order’.
Courts are very caution about making these orders. For example, in a recent case, a father had not seen or spoken to his children for about four months. The child lived with the mother, but no parenting orders were yet in place.
A domestic violence order had been made against the father, which had been extended to include the children. The father sought court orders that the children live with him, spend time with the mother on alternate weekends and half school holidays, and that the children’s names be placed on “airport watch list”. He also asked that their location be disclosed to him.
The judge was concerned about the domestic violence orders in place and no parenting orders were made in favour of the father. The court also ordered for that the children’s whereabouts not be disclosed to the father. However, the children’s names were placed on the “airport watch list” to prevent them from being taken out of Australia.
If you have questions about recovery orders, parenting arrangements or any other family law matters, please contact our office on (07) 3221 4300 to organise a no-obligation initial appointment at a fixed cost.
