Case Overview

Court: Federal Circuit and Family Court of Australia, Melbourne Registry

Matter: Parenting Proceedings – Recovery and Interim Parenting Orders

Outcome: Child recovered and placed in the father’s care, with supervised time for the
mother and protective travel orders

Recovery of a Child Following a Parent’s Failure to Engage in
Parenting Proceedings

Our office acted for a father who had effectively been excluded from the life of his young child following separation and had been unable to spend time or communicate with the child.

The proceedings became increasingly urgent when the mother failed to engage with the Court
process, the child was withdrawn from childcare and information emerged suggesting that the
mother may intend to relocate interstate with the child.

After overcoming significant difficulties effecting service, securing an urgent relisting of the
matter and obtaining a warrant to secure the mother’s attendance before the Court, the mother
was given a further opportunity to participate in the proceedings. When she again failed to
file responding evidence or attend the subsequent interim defended hearing, the matter
proceeded on an undefended basis.

The Court ultimately ordered that the child be recovered and placed in the father’s care, live
with the father until further order, spend supervised time with the mother, be placed on the
Airport Watchlist and not be removed from Victoria by the mother.

At the time our client sought legal advice, the child was living with the mother, who had
historically been the child’s primary carer.

Our Approach

Our office acted quickly to bring the developing circumstances back before the Court.

Urgent correspondence was sent seeking that the matter be relisted, and submissions were
made regarding the father’s continuing exclusion from the child’s life, the child’s withdrawal
from childcare, the evidence concerning the mother’s awareness of the proceedings and the
information suggesting a possible interstate relocation.

The Court accepted that the circumstances warranted expedited consideration and listed the
matter for an interim hearing within approximately two weeks.

When the mother failed to attend that hearing, the Court was faced with a difficult situation.
The child remained in the mother’s primary care, but there was no evidence from the mother
addressing the father’s concerns or explaining the child’s present circumstances.

Although the Court was not prepared at that stage to immediately remove the child from the
mother’s care, it was satisfied that the mother had failed to appropriately engage with the
proceedings. A warrant was therefore issued to secure her attendance before the Court.

The warrant had an immediate effect. Within approximately 48 hours, the matter returned
urgently before the Court and the mother appeared. She provided an undertaking that she
would attend future hearings and was expressly warned about the consequences of any
further failure to comply with the Court’s directions or participate in the proceedings.

The mother continued to refuse to participate in the process, and the Court therefore
determined that the matter should proceed on an undefended basis.

The outcome

After considering the evidence before it, the Court determined that substantial intervention in
the child’s existing care arrangements was required.

Orders were made for:
– the recovery of the child and placement of the child into the father’s care;
– the child to live with the father until further order;
– the mother to spend time with the child on a supervised basis until further order;
– the child to be placed on the Airport Watchlist; and
– the mother to be restrained from removing the child from Victoria.

The orders represented a significant change to the child’s existing care arrangements and
allowed our client to begin re-establishing his relationship with his child after a prolonged
period of exclusion.

Why this outcome was significant

This matter demonstrates the importance of persistence and strategic action where a parent
refuses to engage with parenting proceedings.

A party’s failure to respond to correspondence or attend Court does not automatically mean
that the other parent will obtain the orders they seek.

Procedural fairness remains
fundamental, particularly where significant orders affecting a child’s living arrangements are
sought.

In this matter, considerable work was required to establish that the mother had proper notice
of the proceedings and had been given repeated opportunities to participate.

Once her awareness of the proceedings was established, and she continued not to comply
with the Court’s directions or attend hearings, the Court was able to determine the matter on
the evidence available to it.

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