Introduction

Aside from State-based family violence protection orders which may apply to children, there are also options to seek orders for a child’s protection in the family law courts.

The family law courts have the power to make urgent orders (including granting an injunction) where it considers it proper for the welfare of the child, including an injunction for the personal protection of a child and/or an injunction for the personal protection of a parent of the child (or anyone the child lives with pursuant to a court order or any person who has parental responsibility for a child). See s 68B Family Law Act 1975 (Cth) and s 235 Family Court Act 1997 (WA).

Airport watch list orders and Federal Police alerts

A parent (or other person connected to a child) may sometimes make a unilateral decision to relocate themselves and a child without the consent of the other parent/s or without making their destination known. In these circumstances, especially where there is a serious risk of harm to the child, urgent orders may be sought. This may include a location and recovery order (see below), an injunction preventing the person from changing the child’s primary residence or causing the child to travel interstate or more than a specified distance from their primary residence or other named location (eg, often within 30kms or some other distance of the other parent where there are orders for the child to spend substantial and significant time with that parent).

If it is feared that the child may be taken from Australia, then an urgent application should be made that the child's name be included on the airport watch list and in Federal Police alerts. The Family Court of Australia has an afterhours service which hears emergency applications and grants orders in urgent circumstances. Urgent orders will only be made where the court is satisfied that there is an immediate risk or a need for immediate action. The Family Court's emergency service can be contacted on: 1300 352 000.

See Airport watch list and Federal Police alerts.

Location and recovery of children

Where a child has been wrongfully removed from the care of a person, that person may make an application for a recovery order. A recover order is an order authorising Federal, State and Territory police to recover and return the child to a person specified in the order.

Where a child has been wrongfully removed from the care of a person and that person does not know the location to which the child has been removed, then that person may apply for a location order. A location order is an order requiring a person or a Commonwealth entity (eg, common Commonwealth entities include Centrelink, the Child Support Agency or the Department of Human Services) to provide the court with information regarding the child's location. Such an order would be made in circumstances where the third person or the government entity is likely to have information, or to receive information in the future, which would provide the location of the child.

In Western Australia the State’s Family Court also has the ability to make a State information order requiring a State government entity to provide information to the Court about a child’s location. A common example is the Department of Education for information about a child’s enrolment or attendance at school.

See Location and recovery of children.

Use of injunctions to protect children

Once proceedings are on foot, injunctions may be sought either as an alternative to a State-based family violence order to protect a party or a child, or to restrain a party from either approaching a child or attempting to relocate the child to another area. Orders made under the Family Law Act 1975 (Cth) may be inconsistent to an extent with existing State-based family violence orders for the purpose of facilitating contact with a child or for attendance at a dispute resolution conference.

See Use of injunctions to protect children.