This article is designed to give you information about recovering your children from your ex-partner if they have taken the children without your permission. It is not legal advice. You should always get legal advice about your specific situation.
All about Recovery Orders: The snatch and run
WHAT IS “THE SNATCH”?
Lawyers refer to “the Snatch” in a situation where one parent has unexpectantly taken the children from their home, school or day-care.
It is a scary thing to have your children taken without your consent. What do you do?
Some might say call the police – which, of course, you can do – but let’s remember, if the children are with their father – that’s not a crime. The police will probably say “we don’t get involved in domestic matters.”
Remember that family law is a federal jurisdiction and the police are a state organisation so the police might not be very helpful. What you can do is insist that the police get involved by telling them that your children are in danger.
Recovery Orders: Everything you need to know about the snatch and run
MY CHILD HAS BEEN TAKEN. NOW WHAT?
You can ask the police to conduct a “welfare check” because you are concerned that the children are “at risk of harm or danger”. Generally, the police will go around to your ex-partner’s residence and physically check on the kids to make sure that they are okay. Sometimes, they will get your ex-partner to agree to return the children to you.
Some police stations have a Domestic Violence Liaison officer who is unlikely to be dismissive of your situation, so definitely try and speak to him/her and ask for their help.
As a last resort, you “lawyer up”.
Get your lawyer to send a very firm letter to your ex-partner saying if the children are not returned forthwith, you will be making an urgent application to the Family Court of Australia for a Recovery Order where you will be seeking that the Australian Federal Police physically take the children away from the snatcher’s care and return them to your care. In that application, you can seek that your ex-partner pays your legal fees.
WHAT IS A RECOVERY ORDER?
Section 67Q of the Family Law Act 1975 defines a Recovery Order as:
An order made by a court doing all or any of the following:
Requiring the return of a child to:
- A parent of the child; or
- A person with whom the child is to live under a parenting order; or
- A person with whom the child is to spend time under a parenting order; or
- A person with whom the child is to communicate with under a parenting order; or
- A person who has parental responsibility for the child.”
The Order basically allows law enforcement to do whatever they have to, including by force:
“To stop and search any vehicle, vessel or aircraft, and to enter and search any premises or place for the purpose of finding a child”.
If your children have been snatched and all attempts made by you to get the children returned to you have failed, a Recovery Order is a real option.
You should see a lawyer so they can seek a Recovery Order to get you your kids back.
If you cannot afford a private lawyer, try Legal Aid or a local community legal centre.
HOW DO I GET A RECOVERY ORDER?
To get the Recovery Order, you need to file a lot of paperwork at either the Federal Circuit Court of Australia or the Family Court of Australia (you can choose which) specifically:
- Initiating Application – This sets out your Orders.
- Affidavit – A document that gives your evidence to the Court. This is the equivalent of telling your story from the witness box. You will have to give all the relevant details about ‘the snatch’ and your concerns for the children.
- Affidavit – Non-Filing of Family Dispute Resolution Certificate – This is a form you must complete to say why the case is urgent and why you do not have a Certificate saying that you have attended mediation. Note that it is compulsory to mediate all parenting matters before you file a case in the family law jurisdiction. You can apply for a waiver when there is urgency. A Recovery Order would qualify as an urgent matter.
- Notice of Risk – A form where you set out the risks to the children.
There is a filing fee to lodge the papers. You can lodge the forms online and apply for an urgent court date.
At the court date, the Judge will look at your evidence and hopefully make the Recovery Order.
WHAT YOU NEED TO KNOW ABOUT RECOVERY ORDERS (CONT.)
WHAT IF THE RECOVERY ORDER DOESN’T WORK?
Sometimes, a Court Order seeking to recover the children is not enough to physically get them back.
Let’s say the snatcher has “gone underground” with your children and the Australian Federal Police look at all of the obvious places but still cannot locate your children. The Court has a lot of power to get information and to get the word out that your children have been abducted.
You may have heard of an “Amber Alert” on the news. This is where a Recovery Order has failed to recover the children. Instead, the Court makes an Order to allow photographs and certain details of a party to the case to be published by the media with the sole purpose of locating the missing children.
Without a publication order, it is a criminal offence to publish details of a family law case to the public that identifies any people involved in that case.
WHAT IS A LOCATION ORDER?
Another useful tool is a Location Order where the court will release information to you that is normally confidential.
For example, the person may have disclosed their whereabouts to Centrelink so you can ask Centrelink to release their address and contact information from their system.
If you know your ex-partner banks with a certain financial institution, you can subpoena that bank for their bank and credit card statements to find out where the person is making their ATM withdrawals or purchases. Local law enforcement can then be on the lookout for the snatcher and your children.
