If your ex-partner is preventing you from spending time with your child, you may have to file an application in the Federal Circuit and Family Court of Australia (FCFCOA) for a recovery order and/or a location order. Location and recovery orders can be made when you are prevented from spending time with your child because the other parent has taken them and is not disclosing their whereabouts.
Commonwealth Information Orders
The court can require any person to provide the court’s Registry Manager with information they have about a child’s location. The court can also require the secretary of a department or authority who may have knowledge of the other parent’s whereabouts to disclose that to the court. The court may make Commonwealth Information Orders to obtain information from Centrelink, Medicare, the Australian Tax Office and Child Support.
Publication Orders
The court can also make Publication Orders (generally as a last resort). They enable the media to report limited details and publish photos of missing children and the person they are thought to be with. As each case is different, the terms of the Publication Order can vary.
Location Orders
A Recovery Order or Location Order must be sought by way of an application to the court. An applicant must have existing parenting orders, have court proceedings on foot, or have filed an Initiating Application seeking parenting orders.
If the parties involved only have a parenting plan or a verbal agreement about who the children live with and spend time with, when they apply for a location order they must also apply for parenting orders.
What if there is family violence?
Where:-
- family violence has been alleged, or
- there is a risk of family violence, or
- the court has made a family violence intervention order
and the applicant is
- alleged to have committed family violence; or
- is the respondent to an intervention order where the other parent and/or children are an affected family member or a protected person
information divulged to the court under a location order must not be provided to the applicant. This is to protect a victim of family violence from being at risk from their ex-partner knowing their location. The information will be provided to persons such as the applicant’s lawyer, court officials, the process server or a police officer. If the applicant is unrepresented, the court would usually either:-
- provide the information to a marshal who can arrange for service to occur, or
- appoint a independent children’s lawyer to contact the other party.
Recovery orders
The court can also make a recovery order which requires the return of a child.
A recovery order authorises or directs another person(s) (usually the Australian Federal Police [AFP]) to find, recover and deliver the child.
The FCFCOA may also authorise the AFP to stop and search any vehicle, vessel or aircraft on which the child is suspected to be. If the AFP does not have the resources to retrieve the child, they may ask the state police to become involved.
Who will execute the recovery order?
The AFP will normally execute a recovery order only if the parent who applied for the order is with them at or near the place from which the child is to be recovered. If the child was taken interstate, the applicant parent will have to travel interstate at their own expense.
If a parent removes a child from the Commonwealth of Australia without the other parent’s consent or the court’s authorisation, then the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention) may apply. The Hague Convention is an international treaty providing for the return of children from a member country to which they have been taken back to the country of their origin. These applications are dealt with by the Australian Government Attorney-General’s Department, which is the central authority for Australia.
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Contact us for no-obligation free initial telephone advice about location and recovery orders.
