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False checkmate: using children as pawns in family law

Catherine CousinsAlbany Advertiser
Greenstone Legal's Catherine Cousins.
Camera IconGreenstone Legal's Catherine Cousins. Credit: Laurie Benson

Sadly, when couples separate it is not uncommon for children to be used as pawns in the dispute.

The mentality of a child being a possession rather than a person can play out in very distressing ways, including the child being taken from one parent by another.

When a parent takes a child from another parent or refuses to return the child to the other parent, the Family Court of Western Australia can step in and make orders for the recovery of the child.

The court will do this if the court believes that it is in the best interests of the child to be recovered and returned.

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A recovery order, once made by the court, gives the police the powers to search, locate and remove a child and return them to the parent making the application for the order.

Most recovery orders are sought in urgent situations, including where there is a risk for a child remaining in the care of the person keeping them or where the child is removed from their normal place of residence without permission.

Sometimes, a child may not only be removed from their place of residence but removed from their country of residence altogether by a parent, for example, when a parent will relocate to another country with a child, without permission from the other parent, with the sole intent being to make it difficult for that child to be recovered and returned.

Australia is a party to the UN Hague Convention on International Child Abduction, which provides an international system for the recovery and return of children who have been taken by a parent and relocated to a foreign country without permission or otherwise in contravention of a parenting arrangement.

If a child is taken, it is not a case of ‘game over’. Recovery orders are just one tool in the chess set that that the court has available to it when dealing with child matters. The court’s primary principle is always ‘the best interests of the child’.

If a child is taken or not returned, a parent should act promptly to exercise their rights under Australian law, to see the safe return of their child with as little detriment to the child’s health and wellbeing as possible.

Catherine Cousins is a senior lawyer at Greenstone Legal.

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