By Alison Finch – Special Counsel
My ex-partner has taken my child interstate without my consent, what can I do?
Since the COVID-19 pandemic, there has been a record number of Australian families moving interstate.
This trend is also reflected in parenting cases. Not infrequently, a situation arises where a separated parent moves interstate with a child, without the agreement of the other parent.
If this occurs, what can the other parent do?
A common misconception is that the parent without the child can call triple 000 and the police will immediately find and return the child. This is not the case.
If the child is with a parent, and is not missing or kidnapped by a stranger, the correct procedure is for the other parent to apply to the Federal Circuit and Family Court of Australia (Court) and seek a Recovery Order for the child to be returned.
When can a parent apply for a Recovery Order?
A parent whose child has been taken interstate can apply for a Recovery Order where:
- The child lives with or spends time with them under a parenting order.
- They have parental responsibility for the child under a parenting order.
- They have a parenting plan or informal parenting arrangement for the child to live with or spend time with them, even if there is no formal parenting order.
When do the police become involved in the return of a child?
If an application to the Court for a Recovery Order is successful, the Court can authorise or direct the Australian Federal Police to find, recover and deliver the child to the parent who made the application.
The Court can also order a government department, such as Centrelink, to provide the child’s address, to assist with the recovery. This is generally referred to as a Location Order.
The Court will only authorise and direct the Australian Federal Police to recover the child, if it is necessary. In many cases, the Court relies on the parent who took the child, to return the child themselves, without the involvement of the police.
What does the Court consider when deciding whether to make a Recovery Order?
The Court considers the child’s best interests as the paramount consideration in granting or refusing applications for Recovery Orders.
In determining the child’s best interests, the Court has to consider a range of factors, including:
- The safety of the child and the child’s carers, including the parent who took the child.
- The views expressed by the child.
- The developmental, psychological, emotional and cultural needs of the child.
- The capacity of each person who has parental responsibility for the child to provide for the child’s development, psychological, emotional and cultural needs.
- The benefit to the child of being able to have a relationship with both of the child’s parents and other significant people in the child’s life.
- Anything else that is relevant to the circumstances of the child.
- If the child is of Aboriginal or Torres Strait Islander background, the child’s right to enjoy their culture.
In the context of a Recover Order application, in considering these factors, the Court can consider the benefit to the child of their parent having freedom of movement, to move interstate.
The Court might find that a parent will be able to better meet a child’s development, psychological, emotional and cultural needs if they are allowed to move interstate. Or the Court might consider that an interstate move will best promote the safety of the child and the parent who wants to move, and so be in the child’s best interest.
How quickly should an application for a Recovery Order be made?
It is important that any application for a Recovery Orders is made urgently once a child has been removed interstate without agreement.
As part of its consideration of the developmental, psychological, emotional and cultural needs of the child, the Court will consider the stability of care arrangements for the child.
If the child has been removed interstate very recently, the Court may consider it least disruptive to the child if the child is returned to their home state immediately. The child will then stay in their home state until a final decision can be made about interstate relocation.
But if a child has been removed interstate some time ago, and become established in that new state, the Court may be reluctant to make a Recovery Order and cause further instability to the child by bringing the child back to their previous state immediately. In that case, the Court will still consider whether the interstate move should be permanent, when it makes a final decision about parenting matters.
Applications for Recovery Orders and Relocation Orders are complex. To give yourself the best chance of success, it is important to obtain legal advice early.
If you would like advice about Recovery Orders, Location Orders, relocating with children or any other family law issues, please contact us on (03) 8672 5222 to arrange an appointment with one of our experienced lawyers.
