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Applying for recovery orders in QLD regarding child taken overseas - No current consent orders in place

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International child recovery orders

Hi Everyone,

I really hope you can help me with some questions I have. This relates to a friends situation, although I am well versed in family law in regards to my own situation,  this is quite different.

It is a long story and I will give you an outline.

The child who is now 7 years old was born to 2 Australian parents. They moved overseas.

The mother ended up having an alcohol and mental health issue during the marriage.

The father suggested she return to Australia to visit family and attend counselling.

Upon trying to use her return air ticket overseas in 2009, the father kept changing the ticket. Finally she got back only to find the locks changed and no contact with the child. She then lived in this overseas country for a few months with no contact with her child. She returned without her child to Australia about late 2009.

She has approached DFAT; the AG dept; various MPs etc etc etc.

The father will not return to Australia for any family court proceedings. He still has "parental responsibility" of the child. He will not disclose the location of the child. It is believed at this time it is east Africa.

There has been divorce proceedings. The father has not complied with these still in relation to several issues to property and paying his lawyers etc.

The mother has received a call from an east African person claiming to be in the CID. They knew a lot about the case and the whereabouts of the child. They also requested "$4 000" as the father was apparently supposed to be arrested for drug smuggling! The mother said to the person that she thought it was a hoax etc.

Now, the issue at hand is that after 4+ years of going through the legal system, she has been told, finally, that the AFP cannot look for the chid without a RECOVERY ORDER.

The mother has no current orders in the Court in relation to the child (too long a story to explain).

Does anyone know the Form number for QLD she needs to lodge and any other useful information? The closest I could find was an initiating application.

She is going to the Family Court in Brisbane this week, but I believe they have sent her the wrong form as she hasn't a court file number at all in relation to this issue. Does she need to lodge a Fed Court form and if so which one?

I would appreciate your assistance. This has been going on for over 4 years. She has not seen her child for this time, and does not even know for certain where her child even resides.

Thankyou.

AH



This is the information that is available about recovery orders.

http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Home/Children's+Matters/Recovery+orders/

In part it states

How do I apply?

An application for a recovery order should be filed in the Federal Magistrates Court. If you have a current parenting case in the Family Court, the application should be filed in that court. If you do not have a current parenting order, you should apply for one at the same time as applying for a recovery order.

If the mother does not have a current case, then that is possibly why she doesn't have a court file number. If she is going to the Family Court in Brisbane, then I hope she takes the time to asks questions. I recently visited that very location, and found the staff member very helpful, even at the end the day.

Some forms used are Federal Forms, so hopefully she was sent the right ones.
Hi Boots

Thanks for the reply.

We have read all the info available on the FC site. That is also what I saw.

She doesn't have a current case so no, she doesn't have a file number.

The forms she was sent were from the family court and appear to be ONLY if there's a case.

In this case, there isn't a case, so I am looking for the correct form to lodge.

AH
abm1974, have your friend talk with the staff at Brisbane. They are very helpful and knowledgeable.

Some of the forms used can be used in either the Federal Magistrates Court or the Family Law Courts, such as the Initiating Application. You just need to identify where it is being lodged.
I will do, thankyou.....
Clearly this will become a Hague convention matter. Is the country a Hague signatory country because if not the complexity increase tenfold. African nations are some of the most difficult to effect recoveries as even children are armed with automatic weapons and bribery and corruption is the rule not the exception. You say she has been in the court system for four years but has no case number or file. If she has been in the Australian court system she will have a case id and file number. If there is no case running (which contradicts you saying has been running four years) then you simply follow the instructions to file in a matter.  You will be pushing the proverbial to get over the "Habitual residence" issues after such a long time. Is the child an Australian citizen born in Australia?
It appears the child has lived in that overseas country for at least four or more years of her life.

You definitely need to be speaking to the Registry before lodging anything. There are pre action procedures to follow and you can read through the initiating application form and kit.

Executive Secretary - Shared Parenting Council of Australia
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Guidance notes to applicant:
Where the child has been abducted to a Hague Convention country

Explore what orders will be useful/applicable to support a Hague Application to the Commonwealth Central Authority (Attorney-Generals Department) in Australia. These may include specific location orders and recovery orders.

Ask the client about their circumstances in order to determine whether their matter will result in a prima facie successful Hague Application to the Commonwealth Central Authority (Attorney-Generals Department), including the following:

￿ Whether they have rights of custody and what these involve
￿ When and how the wrongful removal or retention of the child took place
￿ Whether the child was a habitual resident of Australia prior to the abduction
￿ Whether any of the clients conduct may be seen to amount to consent or acquiescence to the abduction

If you believe a prima facie case has been established, lodge a Form 1 Request for return of the child abducted from Australia. The Attorney-Generals Department website contains information to assist the completion of this form.

The Form 1 should be supported by affidavits of the client and the solicitor outlining:
￿ the clients rights of custody and rights of access
￿ the applicable law
￿ the childs social background
￿ authorisation empowering the Central Authority to act on behalf of the applicant.

Lodge an Application with the Family Court for orders that the child live with your client and for a recovery order.

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
I could not find anything of relevance in the legal database available to me on recovery from Non Hague countries.

Another thought is that you will need to establish if the other country will accept proceedings and also as overseas abduction is not currently a criminal offence you will need to consider how you will get Interpol alerts at the borders for the restriction of travel and also what other methods of recovery will be available to you should you get a recovery order made in this jurisdiction. You cannot get a "Red Alert" issued without criminal proceedings as far as I am aware. You will also need to consider the costs to travel to that African country and even if it is going to be safe to do so without suitable personal protection including armed bodyguards etc… I will be very interested to see what sort of options are put to you.

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
Thanks very much for the information.

This is indeed a very convoluted matter and everything you have said here has been investigated. From the AG Dept; DFAT; AFP; Interpol to the media.

The mother was advised to seek property settlement first before doing anything with the child matters…. Hence she has been in the Courts for years, though not for the child matter. This was to facilitate obtaining finances to look for the child.

It is hard to discuss and give the full information, as she has been issued with an order by the Court not to talk about the father or child via media…

The father has lived in Poland and East Africa, and continually refuses to tell the mother/Court (refuses to return to Australia) the whereabouts of the child and his location has been tracked through other means. He will not allow any contact by phone or letter either. It is believed he is currently in Kenya. In fact, we are concerned for the child's welfare as the mother received a telephone call from people saying they were "CID" (police) and the father was going to be arrested for drug smuggling. All they "needed" from the mother was money (!). She told them to go away, but they have told her a lot of information she finds puzzling as to how they acquired it - where the child lives; goes to school etc. Only from the father it appears.

It's all a real mess and because mistakes have been made at the start, it's even worse. The Government are not interested at all.

The child is an Australian Citizen and was born here. The child has travelled on that passport and even when a child alert was made, DFAT still supplied a new passport to the father for the child! Their excuse was they couldn't get in contact with the mother.

So, after years of letters and phone calls to these Government departments, she has just been told that a "Recovery Order" must be lodged in the FCA, Qld. So back to the question of which form? All I can find is an initiating application to the federal magistrates court. The registry staff emailed the forms yesterday, and I believe they are the incorrect ones and she can't use them, as she has NO current/past case in the Courts regarding the Child.



If a case has not already commenced you MUST use the initiating application AND you must use the Family Court form not the Federal Magistrates form in this particular case as you will not be going to the Federal Magistrates with this matter.

This is a complex matter. The form to use is attached. The Registry should assist you to get this to a mention. You will be directed at that time as to what further actions to take.

Attachment
Initiating application - FAMILY Court

Executive Secretary - Shared Parenting Council of Australia
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Secretary SPCA said
If a case has not already commenced you MUST use the initiating application AND you must use the Family Court form not the Federal Magistrates form in this particular case as you will not be going to the Federal Magistrates with this matter.

This is a complex matter. The form to use is attached. The Registry should assist you to get this to a mention. You will be directed at that time as to what further actions to take.

SECSPCA from the posters comments:
abm1974 said
The mother was advised to seek property settlement first before doing anything with the child matters…. Hence she has been in the Courts for years, though not for the child matter. This was to facilitate obtaining finances to look for the child.
It is hard to discuss and give the full information, as she has been issued with an order by the Court not to talk about the father or child via media…
it appears part of the matter has been in the Family Courts already, in which case (since there will be an existing file number) the form will be lodged in that Court.
Unfortunately you wont get  a great deal of overseas help from DFAT or the Attorney Generals department as their budgets for Recoveries are too small.
Abm1974
Your posts are indicating this is not a Hague matter. At best Hague recoveries generally do not succeed if a couple of years have elapsed and non Hague recoveries are very rare because of the cost to a party.
Recoveries from non Hague's are extremely problematic with generally a parent having to lodge some form of application in that particular country. Depending on Australia's relationship with that Country she may receive some limited assistance from DFAT.
abm1974 said
She has approached DFAT; the AG dept; various MPs etc etc etc. …………Now, the issue at hand is that after 4+ years of going through the legal system, she has been told, finally, that the AFP cannot look for the chid without a RECOVERY ORDER.
This is of course correct, DFAT et al will not do anything unless some form of official paperwork exists. None of these departments will act just on someones wishes.*
 
abm1974 said
He still has "parental responsibility" of the child.
Is this some form of Court order? More to the point does it state joint or sole?
Essentially the Mother is going to Court asking for an Overseas Recovery Order for a child she has not seen for 4 years whose location is unknown. You will understand that an initial question will be "Why the time delay"? If you are assisting the Mother you need to prepare a strong outline of argument as to why the Court should issue both orders and a Recovery order.

Note
1  The Father has no obligation to return to Australia for Family court proceedings as the moment he enters Australia he would be subject to Australian Law.
2  The Childs citizenship is not relevant, existing 'habitual' or what was 'the intended habitual residence' is
3  Australia may have special treaty arrangements with the particular Country where you believe the child is located.

You will need an initiating application but do not expect the Court to treat it as urgent as
1  The matter has been ongoing for some years
2 The child has not been removed or withheld in the normally accepted sense.

If you care to pm me I can send some possible contacts who may be able to provide further information.

*Accurate figures on Hague and non Hague abductions are difficult to obtain as both DFAT, the AGs and other departments are involved. Estimates range from 150 to 300 children per year. At present a Government committee is investigating.
Readers should be aware that 'Hague' is not the be all and end all as signatory Countries both treat and handle recoveries differently. In all cases a parent can argue that a child should not be returned for a number of reasons together with "the child is now settled", a status quo argument against recovery.
Conan said
SECSPCA from the posters comments:
abm1974 said
The mother was advised to seek property settlement first before doing anything with the child matters…. Hence she has been in the Courts for years, though not for the child matter. This was to facilitate obtaining finances to look for the child.
It is hard to discuss and give the full information, as she has been issued with an order by the Court not to talk about the father or child via media…
it appears part of the matter has been in the Family Courts already, in which case (since there will be an existing file number) the form will be lodged in that Court.
Thanks for that however I was simply going on the posters comments that  ..
abm1974 said
…and I believe they are the incorrect ones and she can't use them, as she has NO current/past case in the Courts regarding the Child.
I assumed that there is no case currently running. I am finding it all very difficult to get to the bottom of this matter and determine what is running, what is not and where it is all heading so thank you for your subsequent posts.




Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
Hi Everyone
 
I posted a long post this morning with title "update".

It is nowhere to be found. Does anyone know where it would be??

Thankyou

AH
Filler Post to allow abm1974 to reply

 Senior Site Moderator and Administrator
Thankyou for that Sisyphus.


Hi

I have typed this in word so hopefully I will post correctly! I had an update that was mis-posted so here we go again.

Update - The mother went to the FC in Brisbane to file recovery orders late last week. She was lucky enough not to see a duty solicitor but a barrister. The barrister told her that there was no hope in hell that she would get a recovery order when the child has been gone for 4 years and there are no orders in place.

She was told she has two choices  give up or go to Africa, get the child and take her to the nearest consulate and repatriate her.

She was warned not to go alone at all.

The people are still contacting her about the hoax thing. She has forwarded me emails from them, and the policeman has a gmail account.

The latest on that issue as of yesterday is she AGAIN called Dfat; AG Dept and AFP. No one was interested until she said that if the child is repatriated in a coffin then some serious media attention would highlight the inconsistencies and negligence that has occurred.

Guess what, then the QLD police called her. They have requested she send through the emails and text messages and will follow it up with the AFP and Interpol. Apparently the officer in the QLD police service told her he has fears for the child now as if the hoaxers get cross, they can either abduct her or kill her. Wonderful.

That is all I know on that front. I have told her not to communicate with the hoaxers as it will only feed them and encourage more of that activity.

So, no orders were lodged. Nothing is really happening. Have no idea what to do, who to approach or where to go from here.

Now to my clarification to the last couple of posts regarding the confusion.

There are no orders or proceedings, current or past, in the Family Court or The Federal Court in regards to the child.

The proceedings which took place was in relation to a property settlement only. The two things that referred somewhat to the child was:

   An undertaking not to speak to the press.
   For the mother to sign the passport renewal application.

To the time delay:

Obviously, this is a brief outline and there are always two sides to every story if not more

She went to two different solicitors who both said to do the property settlement first so then she had funds to chase up the child matters. Why she did it this way and why she was advised this, I simply do not know. In my opinion, that has made this current issue so much worse due to the time factor. So, that ended up taking 4 years and he wouldnt supply information to the Court; pay his legal fees; kept asking each Court hearing for more time etc etc etc.

They moved from Australia to the UAE to Poland for the fathers work commitments. It was a temporary arrangement to get some money behind them and the child is Australian and would return here for schooling.

The mother was suffering emotional issues due to being away from home and domestic abuse. The father suggested she return to Australia for 3 weeks to see family and get some mental health help. Upon trying to return he kept changing her ticket.

When she returned to Poland, the father had changed the locks; sent the child overseas (without consent or knowledge of the mother) and wouldnt tell her the whereabouts of the child.

She stuck around for several months trying to see her child and was rebuffed at every turn, so she returned to Australia.

She now has an alcohol problem and suffers depression. Doesnt look good on her record, but I can understand why. I have tried telling her she must try and move past this and deal with it in other ways, but I feel it falls on deaf ears. She is too overwrought by the whole thing.

Apparently now the father resides in Kenya. He refuses to have any contact with the mother or allow any contact whatsoever between the mother and child.

She has been advised by me and then the police to get in touch with the father urgently to let him know about this hoax business and the possibility of harm to the child. He wont answer her calls or return emails. I have told her to go to his solicitor who acted for him in the property settlement.

The father married the nanny (in Poland) and they now have a child. The mother also has another child now.

Regardless of whether the mother or father has done the wrong thing in whatever sense, the child deserves to have contact with both her parents. She also has two siblings.

No doubt this story has strong elements of a drama movie.

That is it in a nutshell.

AH






You are dealing with 2 issues, the safety of the child and secondly the chances of the Mother recovering the child.
abm1974 said
The people are still contacting her about the hoax thing. She has forwarded me emails from them, and the policeman has a gmail account.
What is the relevance of a gmail account?
abm1974 said
The latest on that issue as of yesterday is she AGAIN called Dfat; AG Dept and AFP. No one was interested until she said that if the child is repatriated in a coffin then some serious media attention would highlight the inconsistencies and negligence that has occurred…..Guess what, then the QLD police called her. They have requested she send through the emails and text messages and will follow it up with the AFP and Interpol. Apparently the officer in the QLD police service told her he has fears for the child now as if the hoaxers get cross, they can either abduct her or kill her. Wonderful……That is all I know on that front. I have told her not to communicate with the hoaxers as it will only feed them and encourage more of that activity.
She has been advised by me and then the police to get in touch with the father urgently to let him know about this hoax business and the possibility of harm to the child. He wont answer her calls or return emails. I have told her to go to his solicitor who acted for him in the property settlement.
I think you have done all you can on this front and it is now up to the AFP to follow up on the situation.
abm1974 said
Obviously, this is a brief outline and there are always two sides to every story if not more…
There are aspects to the information you have provided that are puzzling and incomplete and I wonder if the Mother is in fact providing you with all the facts. Accurate facts would have a bearing on what a Court might do, information your receive here and any recovery opportunities.
abm1974 said
When she returned to Poland, the father had changed the locks; sent the child overseas (without consent or knowledge of the mother) and wouldnt tell her the whereabouts of the child.She stuck around for several months trying to see her child and was rebuffed at every turn, so she returned to Australia.
During the time in Poland did the Mother make any contact with any of the authorities?
abm1974 said
They moved from Australia to the UAE to Poland for the fathers work commitments. It was a temporary arrangement to get some money behind them and the child is Australian and would return here for schooling.
It is assumed that UAE means United Arab Emirates, how does this figure into the scheme of things? An agreement about a return to Australia would have to be proved otherwise it becomes a He Said, She said situation.
abm1974 said
There are no orders or proceedings, current or past, in the Family Court or The Federal Court in regards to the child…..The  proceedings which took place was in relation to a property settlement only. The two things that referred somewhat to the child was:   An undertaking not to speak to the press. For the mother to sign the passport renewal application..
This means that some child issues were obviously raised in Court. Courts do not just order you to sign a renewal application without the opportunity to argue against it. A normal objection is that that the child may be removed, however if the child had already been removed it may give the objecting parent more leverage in Recovery since the child is another Country without valid documents. Has the Mother actually provided you with a copy of this judgment so you can ascertain the reasoning behind the undertaking and the passport renewal?
Did the Court actually make any orders about the child, it would seem strange for them not to have had some idea of the Childs location and welfare because there was either an undertaking or order for a Passport renewal application.
abm1974 said
The father married the nanny (in Poland) and they now have a child. The mother also has another child now.
Presumably they had to divorce  was this in Australia? If so there could have been a primary objection in the FMC that the child was not being taken care of.
abm1974 said
Update - The mother went to the FC in Brisbane to file recovery orders late last week. She was lucky enough not to see a duty solicitor but a barrister. The barrister told her that there was no hope in hell that she would get a recovery order when the child has been gone for 4 years and there are no orders in place….She was told she has two choices  give up or go to Africa, get the child and take her to the nearest consulate and repatriate her….She was warned not to go alone at all.
Do you really think this is valid advice? Go to the Country and take the child to a consulate. How would the child be repatriated? The local authorities would be less than impressed. At present the Mother does not have any orders stating that she can even see the child or has parental responsibility for the child. This is the fundamental reason DFAT cannot act because they do not have any paperwork that even implies the Mother should even see the child.
abm1974 said
She went to two different solicitors who both said to do the property settlement first so then she had funds to chase up the child matters. Why she did it this way and why she was advised this, I simply do not know. In my opinion, that has made this current issue so much worse due to the time factor. So, that ended up taking 4 years and he wouldnt supply information to the Court; pay his legal fees; kept asking each Court hearing for more time etc etc etc.
We do not know why the solicitors advised this there could be a number of valid reasons. It may be that the Mother was advised than a Recovery order would be unsuccessful and she would need funds to pursue the issue privately. If this is the case why would she think a recovery would succeed 4 years later?
abm1974 said
She now has an alcohol problem and suffers depression. Doesnt look good on her record, but I can understand why. I have tried telling her she must try and move past this and deal with it in other ways, but I feel it falls on deaf ears. She is too overwrought by the whole thing.
You are right  -it looks bad especially as you say she has another child to take care of.
abm1974 said
So, no orders were lodged. Nothing is really happening. Have no idea what to do, who to approach or where to go from here.
At present the Mother has nothing to show any authorities that she should even have any contact with the child. Possibly the first port of call is to get some form of orders indicating contact of some sort and then visit Kenya and try to sort out the situation with a local lawyer. Either way you may have to do some research on the way Kenya handles Family Law issues.

abm1974 - regardless of whether the post has elements of a drama movie - there is an issue of safety for the child.

Great getting the advice, but should the mother wish to go to Kenya to repatriate the child then that is something that can be done, but not without risk, where is the nearest embassy to provide safety should they get there.

I have read your posts and spoken to a PI associate I deal with who is willing to give advice on the matter. He deals in these types of situations.

As it is a child safety matter he will give some guidance, contact him at info@bdeyeinvestigations.com


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