Recovery of Children
As the recent case of a father being arrested in Grafton after "kidnapping" his child demonstrates, matters relating to children after the breakdown of a relationship can escalate, and sometimes become terrifying, very quickly. It is not an unusual occurrence for one parent to withhold the children from the other, irrespective of whether there are orders in place dictating where those children live. The actions that a parent takes can impact a number of matters - from the safety of the child through to the way in which their family law matter proceeds from that point in time.
It is firstly helpful to realise that often the Police will not assist you to recover a child. If the child is not at risk of harm, and there are no court orders in place, then both parents have equal rights to spend time with the a child. As a consequence, bringing the matter before the Family Court or Federal Circuit Court will be the most appropriate course of action in most cases.
An application to either Court can be brought on an urgent basis (which is referred to as "short notice"). If a court is of the view that the matter is urgent, they will list it on a day that is as soon as possible. That day can, however, varies based on which court the application is brought in, and how busy the court is. That first urgent listing may be within days, but it can also be weeks away.
In non-urgent cases, it is necessary to have attended mediation to determine whether proceedings can be avoided, before bringing a children's application before the court. If not, the mediator will issue a section 60I certificate confirming the attempt at mediating the dispute. It is that certificate that it required in most cases before attending court. However, in circumstances of urgency, the need for that certificate can, and most likely will, be waived.
Once the matter is before the Court, they will look at the circumstances and make a decision that is in the best interests of the child. This may mean that the child will be removed from the offending parent and live with the non-offending parent or it may mean that the child will continue to live with the non-offending parent, until the matter can be decided on a final basis. This is particularly the case where there are allegations of risk to the child if they are returned.
If you need assistance with lodging an application please contact our Accredited Specialist in Family Law: