KEY TAKE OUTS:
- Withholding a child in violation of these orders can lead to serious legal consequences, including the need for urgent legal action.
- If a parent refuses to follow the court-ordered custody arrangement during the Christmas period, the affected parent can file a Recovery Order with the Federal Circuit and Family Court of Australia, which may result in the child being returned and involve police if necessary.
- While the Federal Circuit and Family Court of Australia may operate with limited staff during the holiday period, urgent Recovery Orders can still be processed, and hearings can be scheduled promptly to resolve custody disputes and ensure the child’s best interests are upheld.
What Happens If My Child is Withheld During the Christmas Period Despite Court Orders in Australia?
The Christmas season is a time for family and joy, but for separated parents, it can also bring stress, especially when it comes to child custody arrangements. If your child is being withheld by the other parent during the holiday period and there are court orders in place, understanding your rights and the legal recourse available to you is crucial.
Understanding Court Orders
In Australia, parenting orders are legally binding agreements made by the Federal Circuit and Family Court of Australia that outline how parents will share responsibilities and time with their children. These orders are intended to prioritise the best interests of the child and establish clear guidelines for visitation, living arrangements, and other parental duties.
When a court order is in place, both parents are legally obligated to comply with its terms. If one parent unilaterally decides to withhold access to the child, they may be violating the court order, which can have serious legal implications.
Signs of Withholding
Withholding can manifest in various ways, such as:
- Preventing the child from spending time with the other parent as outlined in the court order.
- Refusing to facilitate scheduled visitations or access times.
- Ignoring communication attempts from the other parent regarding visitation arrangements.
If you suspect that the other parent is withholding your child in violation of the court order, it is essential to act swiftly and carefully.
Steps to Take If Your Child is Withheld
If your child is being withheld from you, it is important to reach out to the other party and try to resolve the matter by reminding them of the current Orders in place. If the other party is still refusing to allow the child to spend time with you in accordance with the Orders, the next step is to file an urgent Recovery Order with the Federal Circuit and Family Court of Australia. Although the Court is closed over Christmas, there are a limited number of Registries still operating throughout this period with minimal staff. From 25 December 2024 to 7 January 2025, the Adelaide, Brisbane, Sydney, Melbourne and Perth registries will continue to operate with minimal staff except for 25 and 26 December 2024 and 1 January 2025.
What is a Recovery Order?
A Recovery Order is an Order made by the Court under s67Q of the Family Law Act 1975 which requires the child to be returned to either of the following:
- A parent of the child;
- A person who has a parenting order; or
- A person who had parental responsibility for the child.
If a party is withholding the child from the other and there are current Orders in place, they are in breach of these Orders and a Recovery Order can be filed. During Christmas, the Court will consider whether this application is an urgent one and if so, they will provide a hearing date within the course of the same day or a few days later. If the Court considers the application and deems it as non-urgent, a date will be provided when the Court is operating at full capacity in the new year.
If a Recovery Order is made, it will authorise the child to be returned to the party who has filed the application and it may include involving Police to find, recover and deliver the child. It may also prohibit the other party from withholding the child again. If the other party withholds the child again, the Recovery Order can also authorise the arrest of that party.
Conclusion
Being withheld from your child during the Christmas period can be an incredibly distressing experience, particularly when court orders are in place. Understanding your rights, documenting all communications, and seeking legal advice are essential steps to take if you find yourself in this situation.
The Federal Circuit and Family Court of Australia is equipped to handle such matters with a focus on the child’s best interests, ensuring that parents adhere to their responsibilities. By acting promptly and decisively, you can work towards restoring your relationship with your child and ensuring that their well-being is prioritised during the festive season and beyond.
ABOUT MELINA MANNA
Melina joined the Coutts team in May 2023 as a Paralegal, working in our Criminal & Family Law teams, from our Narellan office. She has now been admitted as a practicing Lawyer in the Supreme Court of New South Wales.
Melina is passionate about the law and strives to deepen her knowledge of the law and legal practice.
For further information please don’t hesitate to contact:
Melina Manna
Lawyer, Family Law
info@couttslegal.com.au
1300 268 887
This blog is merely general and non-specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.
