This can be a scary and distressing situation and the appropriate advice will vary depending on your circumstances. The primary concern should always be the safety of yourself and your children. If it is safe for you to do so, try and speak with the other parent to try and understand the situation. If possible, try to negotiate the return of the children. If you have safety concerns for your children seek immediate legal advice.
Safety first
If you have immediate concerns for your child’s safety, contact the Police immediately. They will discuss the situation with you and if necessary, may be able to attend at the location of the other parent to conduct a welfare check. Without a Recovery Order, the Police cannot remove your children from the care of the other parent.
Court Orders
- If you have existing Court Orders outlining that the children live with you, and the other parent is refusing to return them, you can apply to the Court for a Recovery Order. If granted, this allows the Police to return the children to your care.
- If no Court Orders exist: You can apply for Parenting and Recovery Orders simultaneously. This sets out care arrangements, while a Recovery Order enables the return of the children.
What if the other parent has moved?
If the other parent relocated within Australia with the children and is refusing to return them, the first step is to try and locate where the other parent has moved to. It may be worth asking friends or family, or even looking at social media. If you are unable to locate the other parent or its not safe for you to do so, you can apply to the Court for a Location Order. This enables organisations, such as Centrelink, to provide information to the Court regarding the location of the other parent.
Leaving the country
If you fear the other parent may take the children out of Australia, you can apply to the Court to restrain their removal from Australia. Once issued, the Federal Police can list your children on the Family Law Watchlist.
If they have left the country
If your children have been relocated to another country, it may be possible to seek their return, depending on the destination. Australia along with many other countries are party to the Hague Convention on the Civil Aspects of International Child Abduction. If your children have been taken to a country where the Hague Convention is in force, it is possible to seek their return or access to them through the Australian Central Authority. If the Hague Convention is not in force, then you may be able to obtain Consular assistance to seek the return.
Take action early by obtaining Parenting Orders
If you don’t have Court Orders in place and you have concerns that the other parent may leave with the children, it is best to be proactive and start the process of obtaining parenting Orders which can be obtained by two methods:
- a consent application, meaning that both parents negotiate and agree to the terms of the Orders; or
- a contested application, where the Court will determine the Orders based upon the best interests of the children and the information provided to them.
How can we help?
If you are concerned that your partner may leave with the children, or if they already have, it’s crucial to seek legal advice and begin the process of obtaining necessary Court Orders. Whether you're facing an urgent situation or planning ahead to protect your family, Mellor Olsson’s Family Law team can guide you through applying for Parenting, Recovery, or Location Orders. Contact us today for expert advice tailored to your circumstances. You can reach out via phone on 8414 3400 or via email at [email protected].