Christmas is a time for families. It is not the best time for separated families. For those families where conflict is high and battling it out in the Courts is inevitable, Christmas also means that access to services, such as counsellors, psychologists and family lawyers and the Courts, is limited. Being a self-represented litigant in the Courts is sometimes not one option – it is the only option. The following are some steps which can assist a parent when the other parent refuses to return the children at either the agreed time or Court ordered time:
- Make sure you have any legal documentation readily available if you need to rely on it: s60I Certificate if you need to go to Court urgently, any interim or final Court orders, a Family report (if one has been obtained in the past), a Parenting Plan;
- Check the Orders or Parenting Plan to ensure that you have not made a mistake about the return time or date.
- Try to remain calm and do not let your anger or being upset get the better of you. If you are dealing with a high conflict personality, this might simply inflame the situation;
- Send text messages or emails to your former partner but be as neutral in your language as you can possibly be noting that these written communications can be subpoenaed later on in Court proceedings;
- Work out if there is a mutual friend or family member who may be able to intercede for you to persuade them to return the children;
- If there has been violence and you are fearful for your safety or that of your children then contact Victoria Police on 000 to seek their assistance on the basis that you are in urgent need of and require assistance in obtaining an Intervention Order.
- If there already is an Intervention Order in place and the children are named then contact Victoria Police and alert them to the situation as they can assist if the withholding constitutes a breach of the IVO and can proceed to try and locate and return the children then deal with the respondent on the breach.
- In the case of violence, do not attempt to negotiate the return of the children directly or have others (not police) assist you.
- If you are the respondent and the affected family member to an IVO is withholding the children, do not contact the affected family member unless you are able to do so in relation to discussing children’s issues.
If you need to go to the Family Courts seeking urgent parenting orders, then you may require legal or other assistance to be able to draft the necessary documents. If you have orders, then the application is to enforce the existing order and seek the urgent return of the children and or seek that the Court make orders relating to the contravention of the existing Court orders. This requires you to file an application and supporting documents such as Affidavits setting out the circumstances surrounding the breach(es).
Although there are also extremely urgent situations whereby the Court can take your call after hours and make orders without documents being filed. This latter situation is confined to serious and imminent risk of a parent removing a child or children from the Commonwealth of Australia prior to the commencement of the next working day (Monday-Friday). The telephone number to phone in that situation is 1300 352 000.
Types of Urgent Parenting Applications
- Recovery Orders – Is an order to the Australian Federal Police requiring one parent to urgently return a child to a parent or a person with whom the child has been living or spending time. The order may be made with or without existing Parenting Orders in place. s67T is the relevant section of the Family Law Act about who may apply and s67V requires the Court to consider child’s best interests as the paramount consideration.
- Location Orders – is an order to a Commonwealth Instrumentality or a person requesting information as to the whereabouts of a party to Court proceedings or a subject child. This order is often used in conjunction with a recovery order, where a person applying to Court does not know the whereabouts of the person or child (see 67K (who may apply), 67L (child’s best interests paramount) 67M (Location orders), 67N (Commonwealth Information Orders), 67P (who information disclosed to).
- Publication Orders – Is an order to a person/organisation to publish details of certain children in a public notice in the hope that someone in the public will come forward with information about the whereabouts of a child. This order is often used in conjunction with a recovery order, and is a last resort where a person applying to Court does not know the whereabouts of the person or child.
- Family Law Watch List Order – This Order is an order binding any airline or vessel to prevent a named child or person from flying/sailing out of Australia. ss65ZA and 65ZB provides authority to an aircraft or vessel to deny passage to persons where an order or statutory declaration has been served on them.
- Injunctions – There are several injunctions that may be ancillary to other orders sought such as an injunction for the personal protection of the parties or an injunction restraining a party from removing or taking possession of a child the subject of proceedings.
www.legalaid.vic.gov.au/ tel: 1300 792 387
www.magistratescourt.vic.gov.au/jurisdictions/practice-and-procedure/proper-venue – helps you locate the nearest Magistrates’ Court.
Victoria Police have also published helpful links on their website:
- Magistrates Courtsee their family violence pages and films
- Victims of Crime Help Line (7 days, 8am-11pm) 1800 819 817
- Victoria Legal Aid (Monday-Friday 9am-5pm) free telephone advice in a range of languages 1300 792 387
- Safe Steps Family Violence Response Centre (24 hours) for women & children 1800 015 188 or 9322 3555
- Men’s Referral Service (Monday-Friday 8am-9pm) support and referral for men 1300 766 491
- Sexual Assault Crisis Line (24 hours) 1800 806 292
- Child Protection Service DHHS (24 hours) 131 278
- Housing (24 hrs) state-wide referral for emergency housing 1800 825 955