ARTICLE
3 October 2024

What to do if your partner leaves with the kids: legal steps and options

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Mellor Olsson Lawyers

Contributor

Mellor Olsson is a leading South Australian law firm, offering specialized legal advice to families and businesses across the State. With a focus on client needs, our experienced lawyers strive to enhance the lives and businesses of our valued clients. We are committed to South Australia, providing high-quality legal services in Adelaide and regional areas, building lasting relationships through personalized service.
If you fear the other parent may take the children out of Australia, apply to the Court to restrain their removal.
Australia Family and Matrimonial

This can be a scary and distressing situation and the appropriate advice will vary depending on your circumstances. The primary concern should always be the safety of yourself and your children. If it is safe for you to do so, try and speak with the other parent to try and understand the situation. If possible, try to negotiate the return of the children. If you have safety concerns for your children seek immediate legal advice.

Safety first

If you have immediate concerns for your child's safety, contact the Police immediately. They will discuss the situation with you and if necessary, may be able to attend at the location of the other parent to conduct a welfare check. Without a Recovery Order, the Police cannot remove your children from the care of the other parent.

Court Orders

  • If you have existing Court Orders outlining that the children live with you, and the other parent is refusing to return them, you can apply to the Court for a Recovery Order. If granted, this allows the Police to return the children to your care.
  • If no Court Orders exist: You can apply for Parenting and Recovery Orders simultaneously. This sets out care arrangements, while a Recovery Order enables the return of the children.

What if the other parent has moved?

If the other parent relocated within Australia with the children and is refusing to return them, the first step is to try and locate where the other parent has moved to. It may be worth asking friends or family, or even looking at social media. If you are unable to locate the other parent or its not safe for you to do so, you can apply to the Court for a Location Order. This enables organisations, such as Centrelink, to provide information to the Court regarding the location of the other parent.

Leaving the country

If you fear the other parent may take the children out of Australia, you can apply to the Court to restrain their removal from Australia. Once issued, the Federal Police can list your children on the Family Law Watchlist.

If they have left the country

If your children have been relocated to another country, it may be possible to seek their return, depending on the destination. Australia along with many other countries are party to the Hague Convention on the Civil Aspects of International Child Abduction. If your children have been taken to a country where the Hague Convention is in force, it is possible to seek their return or access to them through the Australian Central Authority. If the Hague Convention is not in force, then you may be able to obtain Consular assistance to seek the return.

Take action early by obtaining Parenting Orders

If you don't have Court Orders in place and you have concerns that the other parent may leave with the children, it is best to be proactive and start the process of obtaining parenting Orders which can be obtained by two methods:

  • a consent application, meaning that both parents negotiate and agree to the terms of the Orders; or
  • a contested application, where the Court will determine the Orders based upon the best interests of the children and the information provided to them.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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