Parenting: “You’re never going to see the kids again!”

A family law separation can be emotional and intense at the best of times. In some situations, the issue of arrangements for the children can be so overwhelming for one of the parents that they take matters into their own hands and ‘kidnap’ their own children. 

If this has happened to you, there are legal steps which can be taken to recover your children from a rogue parent.  Where no parenting orders are in force, the police are powerless to stop your spouse from ‘kidnapping’ the children. Without a Court Order, you will most likely be met with a response from your local police officer that it is a family law matter and not a police matter, and that there is nothing that they can do to help you. Not very comforting words at such a distressing time. 

You can apply for a ‘recovery order’ under Section 67Q of the Family Law Act for the return of a child to you, a parent, a person who has a parenting order or a person who has parental responsibility for the child.  The Court will generally grant the application where the circumstances where the child was taken in violent circumstances or if the child’s safety and welfare is at risk.

Your application must be accompanied by an affidavit (which is a sworn statement) setting out relevant matters such as the circumstances that the child was taken, details about the child and where the child usually lives, where the child might be, steps that you have taken to find the child, why it is in the child’s best interests to be returned to you.

An example of a recovery order that you might seek in your application is:

"The Marshall of the Court, all officers of the Australia Federal Police and all state and territory police officers are requested to find and recover [child and date of birth] and deliver the child to the [father/mother] and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the child maybe found".

Once you have a recovery order, the AFP will co-ordinate the recovery process from Canberra. However this process can be helped along by contacting your local police who will be able to assist you in recovering your child.

If you have a fear that the other parent will take the child outside of Australia, you can apply for the child’s name to be put on the ‘Airport Watch List’.  The Airport Watch List is a system which is designed to prevent children whose parents are involved in Family Law proceedings from being removed from Australia without consent of the Court.

An example of an Airport Watch List Order preferred by the AFP is as follows:

“That until further Order each party, (name and date of birth) their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or committing the removal of the said child/children (name and date of birth) from the Commonwealth of Australia and it is requested that the Australia Federal Police give effect to this Order by placing the name of the child on the Airport watch lists in force at all ports of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Airport Watch List until the Court orders its removal”.

Once a child’s name is on the Airport Watch List, neither parent will be able to take the child out of the country. It would also be prudent to consider applying for an Order that prevents a passport being issued for the child, or requires a person to deliver the child’s passport to the Court.

If the child has already been removed from the country, the Attorney General’s Department can assist to recover the child. If a child has been taken to a country which is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, you can apply to the convention country for the return of the child.

The purpose of the Hague Convention is to discourage international parental child abduction and to ensure that children who are abducted or wrongfully retained are returned promptly to the country of habitual residence so that parenting disagreement can be resolved by the Courts of that country. A list of the Hague Convention signatories can be found on the Attorney General’s Department website.

If you fear that the other parent will take a child out of the country, it is important that you make an urgent application to the Court to restrain the other parent and to have the child’s name put on the Airport Watch List.

The highly publicized case of the Canadian mother, Melissa Hawach is an example of the difficulties that a parent can face when the other parent takes the children to a country which is a non-signatory to the Hague Convention.  In that case, it is reported that the children lived in Canada pursuant to a Canadian ‘Custody Order’ which provided for shared parenting between the mother and father.  The father took the children on a 3 week holiday to Australia.  From Australia, the father took the children to a non-signatory country and thereafter failed to return the children to their mother.  Despite seeking legal recourse in Canada and Australia, the mother could not obtain suitable relief.

The mother went to extraordinary lengths to recover the children. After receiving tip-offs on where the children were located, the mother travelled to the non-signatory country with her father and an investigator from the “Missing Children Society of Canada” and a number of private security consultants.  The mother then went to the hotel where the children were staying and recovered the children herself.

Fortunately such cases are rare. Nonetheless, it is important that you know and consider all the options available for the safeguard and protection of your children.

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