One of the most heart wrenching events a parent can face is the failure of an ex to return a child back to the parent the child lives with. This parent is known as “the primary carer”.
Whether it’s an hour late from an agreed exchange time, a day visit that turns into a weekend or in the worst cases, a child who is taken overseas and never returned, there is nothing more upsetting that not knowing where your child is and whether they are safe. To me, unless there are prevailing circumstances in these matters that deal with abuse, it is nothing more than modern day kidnapping.
The adage that possession is nine tenths of the law can be applied in a round about way to circumvent these upsetting events. If you are the primary carer, you must be very watchful of that possession and responsibility you have been granted by the courts. And by “watchful” I will give you another well known saying… if you give someone an inch they will take a mile.
KEEP PROPER RECORDS
So as the primary carer, you must be rigorous from day one in terms of policing the orders that the court have given regarding shared parenting. If the parent receiving access does not abide by the orders and starts to stretch their access beyond what is allowed you need to immediately communicate with that parent that it is not on. You do this by putting your disproval in writing by email or letter. Try not to send an sms as the other methods are more official and I feel carry more weight if there comes a time when you need to up the ante in a court. Keep any breach by the other parent in a diary or log book that also backs up your correspondence. If they have a lawyer, write to them as well about the breach explaining exactly what happened and that repeat offences are not acceptable.
The reason why you need to do this should be obvious. Court orders about parenting come about from a long and often expensive process and they are written with the child’s best interests in the foreground. If you are the primary carer, you owe nothing to your ex to “cut them some slack” when they take an extra hour or day to return the child. The same can be said to parents who tamper with the other parents access rights.
And when you get into the habit of doing this, the other party will take that mile and leave you with an anything goes situation with the shared parenting. Both of you had an opportunity prior to going to court to work out a less formal and more flexible agreement with parenting, but once you have orders that moment has passed.
Cut no slack!
I say you need to be quick to enforce orders not for possessive reasons but for reasons relating to the children. Children like and need ROUTINE and court orders provide the template for that routine which cannot be changed. Changing a child’s daily routine and timetable is disorientating and can affect their normal social and school schedules.
Beyond their parents, kids have friends to interact with, school work to do, sports and hobbies they enjoy. So while they may not mind spending extra time with one of you… there will be a price to pay somewhere else.
Where the situation has gotten out of hand and a child has not been returned, there are remedies you can seek and have applied by the court to the offending parent. Again, with these things you should not allow too much time to pass if your own attempts to find out where your child is have amounted to nothing.
With recovery orders there are different processes for applying for this order. Primarily, it depends on whether you have a current parenting order or a parenting case pending in the Court.
If there are no parenting orders in place you will need to file an initiating application seeking parenting orders at the same time as applying for a recovery order. You will also need an affidavit providing the evidence to support your application. If you need help with these applications The Legal Eagle can assist at a much lower cost than a “full service” lawyer.
It’s important to remember that the Court is not a child recovery agency. If the Court makes an order authorising or directing another person to find, recover and deliver the child, you must give a copy of the order to that person. In most instances, this will be the Australian Federal Police (AFP).
The “recovery” can come in many forms.
For example, the Court may make an order which allows or requires a person to return the child to you at a designated time and place but when it’s clearly more serious the court can make an order to authorise or direct police officers, to take appropriate action to find, recover and return a child.
Additionally, a recovery order can in some cases provide directions about the day-to-day care of a child until the child is returned or delivered.
These orders can also prohibit the person from again removing or taking possession of the child. In such cases, the order can even authorise the arrest (without warrant) of the person who again removes or takes possession of the child.
CHILD STILL NOT FOUND?
In some situations, you may ask the Court to issue other orders to help locate the child; for example:
♦ A Location Order – if a parent breaches a parenting order and cannot be found, a court may make a location order. A location order requires a person or government agency to provide the court with information about a child’s location.
For example, Commonwealth information orders are a type of location order. This allows access to all sorts of records to find a child from taxation, medicare to school enrolments.
♦ A Publication Order – allows the media to publish details and photographs of the missing child and the person they are believed to be with. However, each case is different and the terms of the publication order can vary.
This orders is usually a last resort.
And don’t forget that when the child is returned to you, you must notify registry staff at the Court as soon as practicable.
Parents wanting to move overseas have a responsibility to consult with the other parent and seek consent to move. If the parent is agreeable, arrangements can be made for the child to see that parent as agreed between them. If the other parent does not agree then the relocation cannot occur and a court order must be obtained from the court to allow the move.
Relocation cases, whether in Australia or for overseas, are difficult because the court recognises the importance of allowing both parents to have an active role in the raising of the child but acknowledges that parents should have the freedom to move around and get on with their lives either to form new families or take up new job opportunities.
In determining a relocation application, a Judge will consider various matters, including the current relationship the child has with each parent.
Presuming the child has a loving, close relationship with both parents, to alter those arrangements and allow the child to move away will significantly affect the ability of the parent with whom the child does not live to maintain the relationship.
And that ain’t fair for either the the parent affected or the child.
We have had a number of cases recently where parents have left the country and not returned with the children. It is a nightmare for the parent who is abandoned and a difficult process to get recovery as you are dealing with third party countries.
These parents have often been hoodwinked into allowing travel and signing travel agreements and handing over passports to the offending parent. Again, possession becomes nine tenths of the law. My solution ALWAYS travel as a family unit and don’t sign dodgy travel agreements with the other parent.
If suspicious about one parents future travel plans with the child, put the child on a watch list (see below).
If one parent has flown the coup and you are concerned about your child’s welfare and safety, report the matter to your local police immediately.
Contact the Australian Federal Police for advice on placing your child’s name on the Family Law Watchlist. Your child may not have yet left Australia and it may be possible to prevent them being removed from Australia.
Seek legal advice. You will need a court order to place your child on the Family Law Watchlist. Obtaining recovery orders for your child may also be of assistance.
If your child has been taken to a country that is a member of the Hague Convention on the Civil Aspects of International Child Abduction, the Australian Central Authority may be able to assist you. For a list of member countries, visit the Hague Convention on the Civil Aspects of International Child Abduction page.
If your child has been taken to a country that is not a member of the Hague Convention, you may be able to get assistance from the Consular Branch of the Department of Foreign Affairs and Trade. The service operates 24 hours a day and can be contacted on 1300 555 135.
Here’s some addition information about international parental abduction:
No-one should have to go through the loss of a child by devious means and that requires you to play your part by being diligent with how the child’s time is spent with the other parent.
If your getting a raw deal from the primary carer which is different to your orders you need to put this in writing to the other parent.
If you have no deal you need to make an application to the court.
And if your child has been “kidnapped” you need to notify police immediately and also seek the help of the court.
Don’t forget we are here to help you if you need assistance with your applications and documents.
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