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If the other parent has decided to unilaterally withhold a child from your care, then you can apply to the Court for a recovery order. This means that you are asking the Court to order that the other parent return the child to you.
A recovery order will say that the child should be spending time with you and is enforceable by the Federal Police and other government authorities.
An urgent recovery order application is one of the most urgent matters that the Family Law Courts will hear. DG Family Law can assist you to draft and file the relevant documents and prepare your case for consideration before the Registrar or Court Officer.
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It is overwhelming and deeply distressing when your child is unilaterally removed or withheld from you.
DG Family Law will assist you to navigate litigation and take the necessary steps to ensure that your child is returned to your care and resumes spending time with you as soon as practicable. We will provide confidence and assist you to take the next step without costing you an arm or a leg.
How long will it take to get a recovery order?
It depends on the circumstances, how quickly you take action and the seriousness of the allegations being made as to how quickly your matter can be heard before a Court.
If the child being withheld is of a serious concern, you may obtain an immediate Court date. The first mention date could otherwise be scheduled for a week or so after filing for less serious matters pending the capacity and resources of the Court.
The Family Law Courts will generally seek to speed up a matter and obtain the closest Court date possible. Once the Court Order has been obtained, the Australian Federal Police will be tasked with locating and returning the child(ren) into your care.
It is best for you to obtain legal advice and commence preparation to file an urgent application as soon as possible to minimise any delays and the prejudicial effect such delays may have on your case.
Both parents are presumed to have joint parental responsibility for the child(ren) whereby both parents have a say in where the child lives. If the other parent has unilaterally decided to relocate interstate against your wishes, you may seek legal advice on filing a urgent recovery application.
The Courts will generally presume to retain the status quo in relation to the children, where they live and who they spend time with. If this situation applies to you, we encourage you to seek legal advice immediately to avoid any prejudicial delays.
If there are current Court Orders in place, you are required to continue to comply with them unless you have a reasonable excuse not to comply. Even with changing government regulations and directions, most shared parenting arrangements can and should continue.
If you have the above concerns, speak to a family lawyer as a matter of priority today.
Can I stop my child being taken overseas?
Typically both parents must sign the application form for a child to obtain a passport. If you or your child have foreign nationalities, you will also need to ensure that passports cannot be issued for your child to travel on those passports as well.
If you do not want your child to leave Australia, you can be proactive and apply for an order that prevents the child(ren) from being issued a passport and leaving Australia. You will need to show that the proposed travel is not in the child's best interests. This is also known more typically as an Airport Watchlist Order.
If there are current parenting orders in place, both parents are required to comply with the terms outlined. If there are no parenting orders in place, we recommend that you consider applying to the Court for parenting orders to be made if the other side is not willing to cooperate.
What happens if my child is taken overseas?
If someone has relocated with your child overseas, you may make an application to the Australian Family Law Courts to seek a recovery and relocation of the child back to Australia.
This type of litigation is typically known as a Hague Convention Application as the arrangement can proceed if the relevant nation is a signatory to the main international agreement regarding parental child abduction.
Sometimes, depending on the jurisdiction and the circumstances, such international recovery litigation can continue unresolved for months, or even years.
We recommend that you engage with the other side and a family lawyer to address any potential problems the other side relocated overseas, as it is much more expensive to attempt to relocate a child to Australia than to simply prevent the child from leaving.
What if the child doesn't want to return?
The choice to withhold a child from the other parent is stressful for everyone and may be illegal, depending on the circumstances. If your child does not want to spend time with the other parent, we would encourage you to enlist professional psychological and legal assistance.
It is presumed under the Family Law Act 1975 that both parties should be involved in the life of a child. You are generally required to be cooperative in ensuring that the parenting agreement is put into practice, unless you have serious concerns about the child's wellbeing.
If a parent has serious concerns about the safety or well being of the child, they should speak to a family law solicitor, apply to the Court to amend the parenting order and allow the Court officer make such an Order based on the evidence if agreement is not forthcoming.
We recommend that you speak with a family lawyer immediately to protect your rights and take the next step without delay.
What information will I need to put before the Court?
If you have decided to file an urgent recovery application with the Family Law Courts, you will need to file an affidavit to the Court outlining the circumstances of your application.
You would want to consider including the folllowing information: a history of the relationship between the parties and the child, a list of any previous Court hearings and other orders, details of the current living arrangements for the child, how and when the child was withheld or taken from you, the steps you have taken to locate the child, where you believe the child is currently located, why it is in the child's best interests for them to be returned to you, the potential impact on the child if they continue to be withheld and any other relevant factors.
The Court will generally consider how to return the child without causing undue hardship while also upholding the child's best interests.