What if one parent refuses to return the children?

Location and recovery orders are provided for by sections 67J and 67Q of the Family Law Act 1975 (Cth) and cover the situation where a person is prevented from having contact with their children because the other parent has taken the children without disclosing their whereabouts. In appropriate circumstances the court can order that any body which may have knowledge of the other parent's whereabouts to disclose this information to the court. Such orders are commonly made to obtain information from Centrelink, the ATO, banks etc.

Parenting orders required for location or recovery order

To apply for a location or recovery order, a person must also apply for a parenting order or have an existing order. If a person has only a parenting plan or verbal agreement about who the children live with and spend time with, he or she will need to apply for parenting orders at the same time as applying for the location order.

Protection for family violence victims

Section 67P provides that any information divulged to the court under a location order must not be provided to the person who applies for the order. Instead, the information is disclosed to other persons such as a lawyer, court official, process server or police officer. This is to protect a victim of family violence from being at risk from a former partner. In the case of an unrepresented party, if a location order is granted, the usual procedure would be for the court to either to supply the information to a marshal who can arrange for the other party to be served, or else to appoint a child representative to contact the other party.

Police powers under recovery orders

The court may order the return of the child by way of a recovery order which will be carried out by the Federal police [Family Law Act 1975 (Cth) s 67R]. As an ancillary power, the police may stop and search any vehicle, vessel or aircraft on which the child is suspected to be. In practice, Federal police may not have the resources at any given time to retrieve a child and this can lead to some delays or to the involvement of State police at the request of Federal police.

Also it should be noted that the police will not normally execute a recovery order unless the parent entitled to the benefit of the order is with them at or near the place where the child is to be recovered. If therefore the child has been taken interstate, the parent seeking the recovery of the child will have to travel interstate at their own expense before the order can be executed. If a parent has no resources from which to make the journey, it may be possible to seek emergency financial assistance from the Department for Child Protection.

Children taken overseas

The Hague Convention provides for the return of children from one member country to which they have been taken, to the member country of their origin. These applications are dealt with by a specialist section of the Crown Solicitor's Office. For a list of steps to take and who to contact in the event a child has been abducted from Australia see the Frequently Asked Questions on the Commonwealth Attorney-General's website.

What if one parent refuses to return the children?  :  Last Revised: Thu Aug 17th 2017
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