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Locating a child when the whereabouts are unknown
Quite often people attend our Free One Hour Consultation wanting to find out what they can do in cases where a former partner has run away with a child or children and the whereabouts of the child/ren is unknown. In such cases, we advise our clients to seek a location order from their local court exercising the family law jurisdiction.
A location order is a court order requiring either a person or a government department to provide to the Registry Manager of the Court with information that the person or government department has or obtains about the child’s location.
You do not require parenting orders to be in place for a parent of a child to apply for a location order. As a matter of fact, a location order can be applied for by a wide range of people. For example, a person:
• With whom the child lives with pursuant to a parenting order; or
• with whom a child spends time with pursuant to a parenting order; or
• with whom the child is to communicate with under a parenting order; or
• who has parental responsibility under a parenting order; or
• who is a grandparent of the child; or
• who is concerned with the care, welfare and development of the child.
Like all court orders relating to children, the best interests of the child are the paramount consideration of the court when deciding whether or not to make a location order. The Court needs to be satisfied that the person or government department named in the location order is likely to have or obtain information about the child’s location.
As indicated earlier, in most cases the location order is filed against Centrelink. It quite often that Centrelink is likely to have or likely to receive information about the whereabouts of the child. When dealing with government departments, the Court is not able to make a location order unless a copy of the application has been served on the department at least seven (7) days before the application is heard.
A location order is effective for 12 months, or a longer period may be granted if the court considers it appropriate. While the order is in force, the person or government department must provide the information sought by the order as soon as practicable. Having said that, a government department is not required to search its records more than once every three months unless specifically ordered to do so.
Once the information has been obtained under a location order it can only be disclosed to the Registry Manager of the Court, a Court Officer, a Process Server engaged by the Court and with the permission of the Court that made the location order, the legal adviser of the applicant or a process server engaged by that legal advisor. The Court is not authorised to disclose information to the applicant and it is an offence to disclose information to anyone else, including the applicant.
The procedure of applying for a location order may differ depending on whether the application is being filed and whether or not there are proceedings on foot. It is therefore important that you obtain legal advice from a specialist in the area. Once the application has been filed, the Registry Manager must fix a date for a hearing within 14 days of the application being filed if practicable. However, if the circumstances are urgent, a hearing date can be listed with a very short time-frame and if the matter is listed ex parte, the court may be able to hear the application on the same day of filing.
Between the date of the filing of the application and the return hearing, the person or department named in the application should be served with the sealed copy of the application at least seven days prior to the hearing. Evidence of service or acknowledgement of service should be provided to the Court.
As indicated earlier, the process and procedural aspect of applying for a location order may be complex and as such it is important that you seek legal advice. To find out more, please do not hesitate to book a free one-hour consultation with one of our lawyers!