11 Jul The Role of the Police in Family Law Matters
Most people believe that the police have overarching powers to assist in any situation that presents itself. Unfortunately this is not the case especially when it comes to dealing with Family Law matters.
What happens if a child spends time with the other parent and at the conclusion of that time the other parent advised they will be retaining the child?
In this type of situation understandably it will be most people’s gut reaction to call the police straight away. Unfortunately there is very little the police can do. Whilst retaining a child from the other parent is an awful thing to do it is not inherently criminal and therefore the police do not have the jurisdiction to intervene.
In this type of situation the most that the police can do is conduct a welfare check on the child to ensure that the child is safe and not at risk of harm.
Once a welfare check has been conducted and it has been determined that the child is unharmed the only thing you can do to ensure that the child is returned to your care is to:
- initiate family law proceedings; or
- if court orders are already in place and the other parent’s actions are in breach of these
orders file a Contravention Application with the Court.
What powers do the police have to intervene where there has been a breach of Family Law Court Orders?
Even with Family Court Orders in place there are limited circumstances in which the police have the jurisdiction to intervene.
Perhaps the most common situation where the police have power to step in arises where there has been a Family Court Order prohibiting the removal of a child from the Commonwealth of Australia. In this situation the Australian Federal Police (AFP) are able to intercept and prevent the unlawful removal of that child from the Commonwealth of Australia and can enlist the police forces of any State or Territory in Australia for this purpose.
What can the police help with?
When it comes to Family Law matters the police can assist in various ways. For example if you are in an abusive relationship the police can assist you by issuing an Intervention Order to provide you with protection from that person.
It is important to note however that having an Intervention Order in place does not automatically revoke Family Court Orders that are already in place nor will it prevent the court from making Orders that provide the other party with contact with a child or children who are listed as a Protected Person under an Intervention Order.
Section 68Q of the Family Law Act 1975 and Section 16 of the Intervention Orders (Prevention of Abuse) Act 2009 provide that any Intervention Order that is inconsistent with a Family Law Order may be invalid. However it is an option that the State Courts have to resolve that inconsistency by suspending a Family Law Order.
The usual process with Intervention Orders is that a clause is included to the effect that the terms of the Intervention Order are subject to any Family Court Orders for contact between the other party and any children, meaning that contact can still take place.
The police can also refer you to support agencies and community organisations and police stations provide a safe harbour for children’s handovers for time spending. In circumstances where domestic violence has been a feature of the relationship some parties feel safer conducting handover with the other parent at a police station.