Kidnapping in Family Law – Phoenix is Found!

On 30 August 2018, Pheonix was found in the Carwoola area – with his Mother nearby. Having been “granted full custody of Phoenix” two months’ prior, Cliff was entitled to be concerned about him being missing. The media have reported that Pheonix’s mother has been arrested and is facing charges related to the unlawful taking of Phoenix, including kidnapping.

The Australian Capital Territory’s Crimes Act 1990 defines kidnapping as a “person who leads, takes or entices away or detains a person with intent to hold that person for ransom or for any other advantage to any person”.

While it is unclear if it was Phoenix’s mother’s intention to derive a benefit or advantage from taking Phoenix, there are more common remedies sought in these circumstances than charges of kidnapping.

These include through an application for a protection Order through the ACT Magistrates Court or with one of the following applications through the Family Law Courts:

1. Varying parenting Orders – if there has been a significant change in circumstances, such as an increased risk of a parent harming a child, an application can be made to vary parenting orders.
2. Airport Watch List Orders – if there are concerns that a child is going to be removed from Australia, urgent Orders can be sought that restrain the child from being removed from the country; whether by air or sea.
3. A recovery Order – whereby Police are directed by the Family Law Courts to physically recover a child from the other parent and return the child to their primary care giver.
4. Contravention Application – whereby an application to the Court is made to have the other party charged with breaching an Order. Penalties such as fines and imprisonment can follow from such a finding.
5. Contempt of Court – where a parent is intentionally contravening Orders of the Court. Penalties such as fines and imprisonment can also follow from such a finding.

We often (and again unfortunately) assist our clients to make these applications to protect children.

The level of trust between a separated couple is often low, and taking unilateral action such as withholding a child can have devastating consequences.

Separation is something that no one ever really plans for or anticipates will happen. Hopefully, people will only go through a separation once. Everybody who enters into a relationship and/or gets married and has children does so with the hope that it will last forever. If a separation goes wrong it can have long-lasting impacts upon a couple’s children and the family.

If you need assistance with your post-separation parenting arrangements, contact us to discuss your options early to minimise the potential consequences.

Courtney Mullen is an Associate Director in our Canberra Office.