Has Your Ex-partner Refused To Return Your Child To Your Care?

January 22, 2020 Madsen Law

Sometimes during a family separation, a parent may be thinking irrationally and will refuse to return a child after spending time with them. Has this happened to you? If so, a recovery order may be needed to have your child returned.

What is a recovery order?

A recovery order is an order of the court that can require a child to be returned to either a parent of a child, a person who has a parenting order that states the child lives with, spends time with or communicates with that person or a person who has parental responsibility for the child.

This order, if granted, will authorize and direct a person or persons, such as the police, to find, recover and return the child to you.

How to apply for a recovery order

The application process for a recovery order depends on the current situation for the care of the child. For example, if your parenting case is currently going through the Court, a party seeking a recovery order can file an application in a case seeking orders for recovery of the child. If you do not have any parenting orders you must file an initiating application.

Regardless of whether you need to file an application in a case or an initiating application, an affidavit will need to be filed. This will set out all the evidence you seek to rely on to request the court grant the recovery order.

It must be noted that the court will only make the order if it is in the best interests of the child.

What happens if I don’t know where the child is?

For a recovery order to be as effective and efficient as possible, the court will need as much information pertaining to the whereabouts of the child so that they can be located with ease.

If you do not know where your child is other orders will be necessary in conjunction with a recovery order. These include a location order, a commonwealth information order or perhaps a publication order. These orders require a person/persons to provide any information about the child’s location and can utilize government records such as Centrelink to assist in finding the child’s whereabouts. Orders such as a publication order can also enable the media to become involved to assist in locating the child.

These orders are usually the last resort and we recommend contacting our offices for legal advice prior to requesting the court make any of these orders as it can become extremely traumatic for the child and all persons involved.

What happens if my child is taken overseas?

If the child has been taken overseas the Hague Convention may apply.

The Hague Convention on Civil Aspects of International Child Abduction is an international treaty whereby there are arrangements in place to have a child returned when they have been wrongfully removed from their country of residence.

It must be noted that not every country is a party to this treaty. If the child is removed to a country that is not a “Hague country” it becomes a lot more challenging to have them returned.

If this is the case, we highly recommend seeking urgent legal advice.

More information

Our offices aim to have a child returned as effective and efficiently as possible, however, we also strive to minimize the trauma to both yourself and the child.

If you think you need a recovery order, would like more information in relation to a recovery order or are perhaps just concerned that someone may not return your child to you, please contact our offices so we can assist you.

If you believe your child is at risk of harm, please contact the police on 000 immediately.

The below preventative strategies may also assist you in being aware of where your child is:

  • Having find my iPhone installed on the child’s phone so that you are able to log in from your device and pinpoint where the child’s phone is. This could give you a better idea of where your child may be if your ex-partner refuses to return them.
  • Having your child wear a smartwatch that has a GPS tracker. This can be utilized to help locate the child if they are not returned to your care.
  • Receiving as much information as possible about where your ex-partner is taking your child when they are in their care, especially for overseas or interstate holidays. This includes copies of travel itinerary, accommodation, a contact number, ect.

Obtain a signed undertaking from your ex-partner stating that they will return the child when agreed. A signed undertaking can be produced to the court and if not complied with the court can force the person to take the action stipulated in the undertaking