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Unilateral Relocation and Recovery Orders

Unilateral Relocation and Recovery Orders

Going through separation or divorce can be incredibly traumatic especially where children are involved. But imagine if your ex unilaterally decided to either relocate or disappear completely with your child. Unfortunately this is something that happens more regularly than most of us in the family law profession would like to admit. The good thing to know is that although the process will rarely be swift, there is something that you can do.

What does the law say?

Section 67Q of the Family Law Act 1975 (Cth) authorises the court to make a recovery order that requires a child to be returned to either:

  •     • a parent of that child;
  •     • a person who the court has ordered the child to live with, spend time with or communicate with; or
  •     • a person who has parental responsibility for that child.

A recovery order can permit or direct that appropriate action be taken (often by the Australian Federal Police) to find, recover and deliver the child to one of these people. This means that if your ex has up and left with the child whether you know of their whereabouts or not you can make an application to the court to have the child returned.

Can I apply for a recovery order?

You can make an application for a recovery order if:

  •     • You have been awarded parental responsibility of the child by a court; or
  •     • A court has ordered that the child lives with, spends time with or communicates with you; or
  •     • You are a grandparent of the child; or
  •     • You are the person that the child ordinarily resides with and you are concerned with the care, welfare and development of the child.

Making an Application If your matter is already before the Family Court of Australia your application should be made with that court. Otherwise an application for a recovery order should be made in the Federal Circuit Court. To initiate proceedings you will need to file an Initiating Application, a Notice of Risk and an Affidavit in support of your application. In addition to seeking the return of the child you should consider seeking parenting orders to determine the future care of the child.

What if I don’t know where the child has been taken?

It is important that you include as much information about the likely whereabouts of the child to enable the authorities to find him/her. Additionally you can request that the court makes further orders such as a Location Order or a Commonwealth Information Order.

A Location Order requires a particular person to provide the court with information that will lead to the location of the child. A Commonwealth Information Order on the other hand requires Commonwealth agencies such as the Australian Tax Office or Department of Human Services to furnish the court with information relevant to the child’s location that may have be contained in public records.

The Court Process

In Sayer v Radcliffe and Anor [2012] FamCAFC 209 at [47-48] it was stated by the court that: “It is now well established principle that, whilst some special requirements may apply, relocation cases are guided and judicial officers bound by the same legislative pathways as other parenting cases under the Act…”In other words despite the horrendous nature of these cases, taking into consideration what is in the best interests of the child, the court must consider the parenting proposals of both parties including the party that unilaterally decided to relocate with the child.

What happens when the court makes the recovery order?

Depending on the circumstances of the individual case the court will typically make one of two orders. Either:

  •     1. An order that the child be returned at a designated time and place; or
  •     2. If circumstances warrant it, an order authorising the Australian Federal Police (AFP) to find, recover and deliver the child.

What if the child has been taken overseas?

Australia is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. This means that if one parent takes a child from their home country without the permission of the other parent or the court, provided the country that the child has been taken to is also a signatory, there is a lawful procedure for seeking the return of the abducted child.

If you are concerned that the other parent may try and remove your child from the Commonwealth of Australia you can contact the Australian Federal Police and have your child listed on the Family Law Watchlist.

sam
sam@marketingsweet.com.au