Monday, 22 September 2014

When a child is retained by a parent

From time to time the media report that a child (or children) is missing - retained by one parent, or other family member, from their other parent. Sometimes the whereabouts of the child are known but other times the child will be in hiding.

If the child is believed to be in Australia the parent who doesn't have the child can bring an application with the Family Law Courts to try and recover the child. This is known as an application for a 'recovery order'.

To obtain a recovery order the Court must be convinced that the child ought to be recovered and as such it is necessary to present the Court with details in relation to any existing orders, where the child usually lives, when the child ought to have been returned, steps that have been taken to locate the child, why it is in the child's best interest to be returned and the likely impact on the child if the child if a recovery order is not made. Any information as to where the child might be should also be included.

When the whereabouts of the parent who has taken the child are known and that parent participates in Court proceedings the Court can make an order that they return the child at a designated time and place. In some cases the Court will make an order that if they again remove or retain the child that they be arrested.

Should their whereabouts not be known, or should they not participate in proceedings, a recovery order can authorise or direct a person, such as a police officer, to take appropriate action to find, recover and deliver a child to a parent or other carer. In most instances the police will be the Australian Federal Police, but the State police can also be included.

The steps that can be taken include the stoping and searching of any vehicle, vessel or aircraft and the searching of any premises or place in which it is reasonable to believe the child may be.

Generally the police will not recover a child until a parent or carer is close by and able to receive the child.

If the child still can not be found, or if no information is available as to the possible whereabouts of the child, the Court can also make orders to help locate the child - known as a 'location order' or a 'Commonwealth Information order'. A location order requires a person to give the Court information about the child's location while a Commonwealth Information order requires a Commonwealth Government Department, such as Centrelink, to give the Court information about the child's location.

As a last resort the Court can also make a 'publication order'. This allows the media to publish details and photographs of the missing child and the person they are believed to be with.

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