Removing the Children

Restriction in Movement and Relocation

When the parent with whom the child lives wishes to move a considerable distance from the other parent, either to frustrate ‘time with’ deliberately or simply to start again, the Court must decide what is in the child’s best interests. The Court can make an order preventing the children from being taken outside the State or overseas without permission of the Court or the other parent. When asked to make such an order, the Court will determine each case individually, having regard to individual circumstances. In particular, the Court must consider the right of the child to have ‘time with’ on a regular basis with both parents, and the practical implications of maintaining direct ‘time with’ with both parents on a regular basis. These considerations are subject to what is in the best interests of the child overall.

If there is a possibility that a child will be removed from Australia, the Court can order the surrender of any person’s passport, including that of the child, and issue a warrant authorizing a person to stop and search any vehicle, vessel or aircraft or search any premises, in order to take possession of the child. Children’s names can also be put on a computer list maintained by the Australian Federal Police at airports and other points of departure from Australia.

Abduction of Children

If a child has been taken or not returned to the person who is their primary carer then that person must apply for a recovery order at the Family Court or local court as soon as possible. A recovery order is like a warrant for the return of the child and empowers all State, Territory and Federal police to find and return the child to the person who is their usual carer. It may also prohibit a person from taking the child again.

If the carer does not already have a residence order, the carer should also apply for a residence order and an order for the daily care of the child at the same time as applying for a recovery order. In an emergency situation, the Court may make an ex parte order giving residence and daily care immediately and without the other parent being in court.

The Court can also make a Location Order or a Commonwealth Information Order to obtain information from individuals and/or State and Federal government departments like the Department of Housing, the Commissioner for Taxation and the Department of Family and Community Services as to where the parent and the child or children may be.