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Seeking urgent recovery orders in the Family Court

Urgent applications

Things to consider

Before filing an application for the urgent recovery of children you should consider whether the application is in fact urgent and also whether you have evidence to support such an application. Some of the things you could consider include:

  • Are there any current orders and if so what do they provide for?
  • Is it possible that the orders have been misunderstood (this is particularly important when dealing with orders relating to school holiday times)?
  • Is there a history of a party retaining the children beyond the agreement but ultimately returning the children – i.e. does the mother always say she will return the children on Sunday but in fact brings them home on Tuesday? If this is the case it may be better to refer your client to family dispute resolution to obtain either a parenting plan or consent orders outlining the varied arrangements for the children;
  • What were the care arrangements for the children before the children were removed or retained?
  • Are there any risk factors associated with the other parent or your client; this would include issues of domestic violence, drugs, alcohol, involvement of DoCS or mental illness?

Filing urgent applications

Each application will need to include:

  • An Application for Interim and Final Orders;
  • A supporting affidavit by your client;
  • Exemption Form: Payment of court fees.

If possible include a copy of the marriage certificate and birth certificates of the child/ren. It is helpful to call the Family Court and speak to a Registrar and advise that you are bringing to the Court an urgent application and make enquiries about possible listings. In most Registries of the Family Court and Federal Magistrates Court, you will then need to see the Duty Registrar to obtain an urgent listing date. You will need to be able to explain the grounds on which you are seeking urgent orders.

What to include

These applications often require you to decide what sort of application you need to make. An application can include:

Airport Watch List Orders

Important if your client raises the risk of child/ren being removed from Australia.

Substituted Service Order

If your client instructs that while they do not know where the other party is, there is someone else who does (usually a grandparent or a current partner).

Recovery Order

An order for the Australian Federal Police (AFP) to recover the child/ren and return them to your client.

Parenting Order

If there are no Parenting Orders in place you will need to include orders for who the child/ren live with and the time they spend with the other parent. You should also consider requesting the Court to allocate parental responsibility.

Location Order

If you do not know the whereabouts of the child/ren Location Orders usually are made against Government Departments like Centrelink or schools for those organisations to provide information to the Court in relation to the whereabouts of the children. These orders are usually sought in circumstances where your client has no idea of the possible whereabouts of the children. These orders are often needed by the AFP to assist them in locating the general whereabouts of the children.

It is important before seeking this order to read the rules which outline the notice which must be given to the organisation you are seeking information from. There are occasions when Centrelink will object to providing the information sought. Information provided under a Location Order is provided to the Court and not to the parties. In most cases the Court will be very strict about how that information is used and will usually confine the release of the information to the solicitor acting for the party looking for the children.

Short Service Application

A request that the Court list the matter on the earliest possible date. This application is made at the time of the filing of the application.

Publication Order

Publication Orders generally allow the media to report details and publish photographs that may help locate a missing child. Publication Orders usually cease when a child is recovered. You can apply for a Publication Order if you are applying for, or have applied for, a Recovery Order. The Court will usually have an agreed wording of the information which can be released about the child and will usually include a physical description, description of the person the child was last seen with and details of where they were last seen.

Ex parte Applications and Applications to Dispense with Service

Ex parte Applications request that the Court deal with the matter immediately and with no notice to the other party. This would usually only be granted in matters where you can substantiate urgency, an immediate risk to the child, you cannot find the other party, or there is a reason why you do not want the other party to be aware of the application, or where you have grounds to proceed immediately.

If you are seeking orders on an ex parte basis you would need to ensure that you have complied with the Rules in relation to Dispensing with Service, and that you have addressed these in any affidavit filed with the Court. This affidavit should also address the issues of risk, urgency, why the other party cannot be found – or the grounds to proceed immediately.

An Application to Dispense with Service will need to demonstrate that you have exhausted all avenues to try to serve the other party.

Ex parte Orders can include orders:

  • Substituting service on another person who may know where the other parent or children are, such as a grandparent or sibling, or a government agency such as the Child Support Agency;
  • For the immediate return of the children, in cases where there is abuse or risk of harm;
  • For the disclosure of information of the whereabouts of the other parent and children;
  • Requesting that the Australian Federal Police assist in finding the children and returning the children.

Exemption from requiring a section 60I certificate

If your client does not have a certificate that they attended family dispute resolution, it is necessary to seek an order that the application be filed and dealt with, without that requirement being met. Your affidavit would need to address the exceptions under section 60I.

Exemptions to attending family dispute resolution

The following are the exemptions listed under the Family Law Act at Section 60I(9).

Exception

60I(9) Subsection (7) does not apply to an application for a Part VII order in relation to a child if:

  1. the applicant is applying for the order:
    (i) to be made with the consent of all the parties to the proceedings; or
    (ii) in response to an application that another party to the proceedings has made for a Part VII order; or
  2. the court is satisfied that there are reasonable grounds to believe that:
    (i) there has been abuse of the child by one of the parties to the proceedings; or
    (ii) there would be a risk of abuse of the child if there were to be a delay in applying for the order; or
    (iii) there has been family violence by one of the parties to the proceedings; or
    (iv) there is a risk of family violence by one of the parties to the proceedings; or
  3. all the following conditions are satisfied:
    (i) the application is made in relation to a particular issue;
    (ii) a Part VII order has been made in relation to that issue within the period of 12 months before the application is made;
    (iii) the application is made in relation to a contravention of the order by a person;
    (iv) the court is satisfied that there are reasonable grounds to believe that the person has behaved in a way that shows a serious disregard for his or her obligations under the order; or
  4. the application is made in circumstances of urgency; or
  5. one or more of the parties to the proceedings is unable to participate effectively in family dispute resolution (whether because of an incapacity of some kind, physical remoteness from dispute resolution services or for some other reason); or
  6. other circumstances specified in the regulations are satisfied.