The Australia Federal Police (AFP) posted a news report on Facebook on 19 September 2018 that three children who had been “abducted” by their father had been found safe and well.
The children had been taken by their father in September 2017, in breach of a Federal Circuit Court Order. In August 2018, the Federal Circuit Court of Australia issued a Recovery Order for the children. This was after a yearlong search for the missing children had failed. Following a media release by the FP, the children were recovered in two separate locations and their father was arrested.
The media notice also included a warning that “the AFP reminds the public that anyone who is found to be providing support to an abducting parent may themselves be committing a serious offence.”
A Recovery Order is essentially a warrant allowing the AFP to go and “recover” children from the parent who has absconded with them contrary to an Order of the Family Court or the Federal Circuit Court. This can only be done if a party to the proceedings files a Contravention Application with the Court. The Court cannot do anything unless the issue is brought to their attention via an application.
The post on Facebook caused heated debate and speculation amongst members of the public. Many people wrote comments on the Facebook post such as “We all know fathers are usually seen as the villain these so called outstanding warrants could be no more than unpaid parking fines” and “does that make him a bad person or just a father desperate to be with his children?” Many more people commented that it was likely the mother was unsafe and the Courts had failed the father who probably had a good reason for taking the children. It is interesting that public’s perception of the events which had occurred were not that the Father had done the wrong thing and possibly put the children in danger, but that he had absconded to protect the children from their mother and that breaching a Court Order didn’t make him a bad father.
The Family Law Act 1975 provides that “in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.” This includes any order for the recovery of a child. In this case, the Federal Circuit Court of Australia would have considered whether the recovery order was in the best interests of the children before issuing the Order for the return of the children to the care of their mother.
Assuming, there were parenting orders made by the Court which provided for the children to live with their mother in this case (which the father breached), the Court has the following remedies available to it after finding that a breach has occurred:
- Issue a Recovery Order for the children, which can be enforced by the AFP;
- Issue an arrest warrant for the father;
- Issue a fine of up to $21,000;
- Issue a bond with or without a security payment for up to 2 years;
- Issue a Community Service Order; and;
- Sentence them to a period of imprisonment.
In addition to the powers of the Family Courts, the person may be charged with criminal offences specific to the state where the alleged offences occurred.
The Family Court and the Federal Circuit Court have a lot of power when it comes to parents choosing not to comply with orders and absconding with children. A recent spate of events has seen the Court utilise their powers in a more public way than they previously have, including jailing a mother for fleeing with her children and convicting the children’s grandmother as an accessory to the offence.
If you are concerned that you have breached Court Orders or your former partner has breached Court Orders and you are concerned about the safety of your child/ren please contact Caroline Counsel Family Lawyers to arrange an appointment to speak with one of our lawyers.
The information in this blog does not constitute legal advice and cannot be relied upon by you. If you require advice specific to your situation, you must contact Caroline Counsel Family Lawyers for legal advice. The contents of this blog are relevant as at 20 September 2018. We recommend you obtain specific advice relevant to you and your family’s situation.
By Sarah Damon
 S60CA Family Law Act 1975