If you are a parent and your ex-spouse or de facto partner has taken your child without your consent, it can be highly distressing and confusing. It’s vital to take immediate action to try and resolve the situation and ensure your child's safety.
In this blog, we will discuss the steps a parent can take in line with Australian law, to recover a child who has been unilaterally removed, or has failed to be returned by the other parent.
The primary consideration must always be the safety and well-being of your child. If there is any chance that your child is experiencing physical, emotional, or psychological harm, it’s essential to contact the Police as soon as possible.
Removing a child from their primary carer without their consent can be considered “child abduction” or “kidnapping” under Australian Law. It can constitute a criminal offence if there isn’t a reasonable excuse for doing so, such as fleeing family violence.
The Police will help you locate your child, perform welfare checks, and, if needed, take action to return them to you.
If you believe that your child, or children, have been taken to another state or territory, or overseas, it is necessary to seek legal advice as soon as you can.
If your child has been taken to another country, they may have protection under the Hague Convention. This depends on where they have been taken. The Hague Convention covers the Civil Aspects of International Child Abduction. It provides a framework for returning children wrongfully removed from one country to another if both countries are signatories to the Convention. You can find a list of Hague Convention countries here.
If you have a Parenting Order in place, you can issue an urgent application to the Federal Circuit and Family Court of Australia for a recovery or enforcement order. An enforcement order will require that the children’s usual care arrangements outlined in your Parenting Orders are resumed immediately.
The Court may also consider varying the Orders to restrict the abducting parents' usual time with the child/ren if they are satisfied that they pose an unacceptable risk to the child/ren. Failure to comply with an enforcement order may result in a parent being found in contempt of Court, and they could face penalties such as a fine, community service, or even imprisonment.
In circumstances where there is no parenting Order in place, you may apply to the Federal Circuit and Family Court of Australia for an urgent hearing seeking Parenting Orders to be put in place. The parenting Orders you would be seeking would likely include an Order for the immediate return of the children to your care, and the Court may enlist the assistance of the Australian Federal Police to assist in recovering them.
The parenting Order will further set out the arrangements for the care of your child/ren, including who they live with, the time they will spend with the non-resident parent, and other important matters such as communication and decision-making. The child's best interest is the court's paramount consideration. The Court will exercise its judicial powers to ensure that children are safe from harm and that their well-being is met.
If you find yourself in a situation where your child has been abducted or removed without your consent, and you have concerns for their wellbeing, contact the Police immediately. You should then reach out to a family lawyer. They will provide you with tailored legal advice regarding your situation and assist you throughout this challenging time and process.