Recovery Orders for missing children. Warring spouses occasionally antagonize each other and create highly charged situations for no poignant purpose other than to score points in a never ending game of psychological warfare. Most often, the biggest weapon used by parties is the one least deserving of being thrust in the middle of the fray, the children. Parents often abscond with, or, deliberately delay returning children for a variety of reasons, many of which are innocent, some of which are not. The Family Law Courts have specific powers to authorise the Australian Federal Police (amongst other authorities) to search for and seize children deemed to have been removed from the primary carer parent. How does a Court decide whether to make a Recovery Order? In deciding whether to make a recovery order, the best interests of the children are the paramount consideration and subject to this provision, the Court may make a recovery order as it thinks fit. Actual physical removal of the children by one parent is not a prerequisite for a recovery order to be made. For example, in circumstances where a victim of family violence flees the matrimonial home without taking their children, the Court can make a recovery order forcing the violent, controlling parent to hand over the children to the other parent. (In those circumstances, the need to protect the children from psychological harm far outweighs any other consideration and as such, the Court will not hesitate to remove the children from the controlling parent in circumstances where the victim can demonstrate they were subjected to family violence. At least on a preliminary basis, the Court will always err on the side of caution and give serious weight to protection concerns over other considerations like any views expressed by the children, the nature of their relationship with each parent, the effect of a change of circumstances upon the children etc). Recovery Orders can be sought by a person who has parental responsibility for the child (i.e. the mother or father), a party to whom the children are to live with under a parenting order (i.e. grandparent, uncle, aunt etc.) or a person with whom the child is to communicate with under a parenting order. Who pays for it? The legal costs of the recovery order are usually covered by the party seeking the order. A successful recovery order does not ordinarily expose the intransigent party to the risk of a costs order against them. What powers does the Court have? The specific powers of the Family Law Courts are to order law enforcement agencies to stop and search vehicles, vessels or aircraft to recover a children, or enter and search any premises specified by the Court (or any premises in which offices have reasonable cause to believe the children concerned may be found). The Court can also order: (a) A person/s to return a child to his/her parents; (b) Authorise another person (or persons which such assistance as they may require) to recover a child by force; (c) Prohibit a person from again removing or taking possession of a children; or (d) Authorise the arrest without a warrant, of a person who again removes or takes possession of a child. The Court also has specific power under section 68B to impose injunctions upon persons from removing children from a geographical region (or in the case of a married couple, section 114). These orders are usually made strictly on an interim basis only, pending the determination of a relocation application at a final hearing, or in certain cases, on a final basis. The typical scenario is one party expresses the desire to relocate with the children to another state/country for work or better lifestyle opportunities. The opposing parent will lobby the Court for an injunction to stop the child being removed from a particular town/city/State etc. The Court will usually order the injunction pending the outcome of the final hearing and if the relocation is not considered to be in the best interests of the children, then the order will become permanent. When can you apply for a Recovery Order? Recovery orders can be made on an urgent or ex parte basis, that is, the usual waiting period (often spanning over a month or so) can be circumvented by a Registrar if you are able to demonstrate a reasonably compelling case for urgency. You must be ready to give evidence orally before a Judge that day including the provision of supporting evidence if the Registrar accepts your case as urgent. What happens if a party refuses to comply? There are penalties for a person hindering a Recovery Order including monetary fines, recognizance with or without surety or security, imprisonment until a recognizance with our without surety or security is entered into or until the person has been imprisoned for three months, which ever takes place first. Recovery Orders will often go hand in hand with Airport Watch List Orders, which are similar in nature but specifically related to restricting children being removed from the Commonwealth of Australia. I will address Airport Watch List Orders in my next blog. Adam Akbulut is the founder of Amicus Lawyers and a Melbourne based lawyer with a keen interest in family law, commercial law for SME’s and privacy law.
Posted on: Fri, 25 Jul 2014 07:10:45 +0000
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