Dealing with people who have been arrested in family law matters is a serious matter. But, in what instances can offenders of family law matters receive a warrant of arrest? According to Section 65R of the Family Law Act 1975, courts may order a warrant of arrest if the offender:
- Contravened a parenting order; or
- Is found guilty of illegally relocating or abducting a child. However, arresting a person who has illegally relocated or abducted a child won’t require a warrant of arrest.
Dealing with people who have been arrested in family law matters can be very difficult if there are other family members involved. Hence, it’s important to seek professional legal advice from a family lawyer. Read on to know more about arrests related to family law matters.
Dealing With People Who Have Been Arrested Family Law: Parenting Orders and Recovery Orders
1. Parenting Orders
Parenting orders typically contain parenting arrangements for children of divorced couples. Both couples must comply with parenting orders since they are legally binding. Courts draft a parenting order in two ways. Firstly, if divorced couples agree on certain parenting arrangements, they may get a parenting order through consent orders.
Secondly, divorced couples can go through a court hearing if they disagree on parenting arrangements. In this case, the courts will decide what parenting arrangements they think are appropriate for the child. The courts will always give paramount consideration to the child’s best interests when making parenting orders.
Circumstances for Parenting Order Contravention
Minor or Major Breach – Minor violations are typically not punishable as compared to major violations. A minor breach may include failing to allow the other parent to see the child on an agreed-upon weekend. Whereas a major breach may include refusing to allow the other parent to see the child at all.
The number of breaches – Courts will greatly consider the number of times that an offender contravened a parenting order. Some offenders may contravene an order multiple times.
Reasons for the contravention – In rare cases, some offenders have a reasonable excuse for the contravention. This results in a less severe penalty, however, a heavier penalty is imposed if offenders cannot present a reasonable excuse. Here are some reasonable excuses for contravening a parenting order:
- The offender did not understand their duties and responsibilities in the parenting order
- The person believes that the contravention was necessary to protect the health and safety of a person, themselves, or the child.
- The contravention did not last any longer than was required to protect the safety or health of a person, a child, or themselves.
2. Recovery Orders
It’s important to talk about recovery orders when dealing with people who have been arrested in family law matters. Courts impose a recovery order if there is an illegally relocated or abducted child from a parent. If courts are successful in locating and recovering the child, they may arrest the offender without a warrant.
Section 65S: Bringing the Arrested Person to Court
According to Section 65S, the arresting person must bring the alleged offender to court. The arresting person must also inform the applicant of the recovery order of the arrest. This includes informing the applicant on which court will handle the alleged offender. However, Section 65S does not authorise a party to hold the alleged offender in custody after the end of the holding period.
Police are not permitted to hold alleged offenders in custody without charge indefinitely. It’s possible to extend the standard six-hour detention warrant for investigation purposes, which totals to twelve hours. It also is not possible to extend it more than once. Although the maximum time for detainment is six hours, there are several times when the six-hour limit will not apply.
Section 65T, 65U, 65V: Court Obligations
Dealing with people who have been arrested in family law matters will require courts to act as soon as possible. Section 65T applies if the alleged offender is brought to court due to contravention of parenting orders or if he/she is the offender of a recovery order. The court must, without delay, proceed to hear and determine results for the applicant. Section 65U lays out the obligations of the court if:
- The alleged offender is involved in a recovery order;
- There is no application before the court for the alleged offender for the alleged contravention; and
- The court is aware that there is another application in another court for the alleged offender for the alleged contravention.
If all these factors apply, the court must order the release of the alleged offender from custody. Alternatively, the courts may also order the alleged offender to appear before them at a specified time and date. Courts must do this as soon as practicable and in any event not more than 72 hours after the order is made.
What if there’s no application when dealing with people who have been arrested in family law matters? What happens to the alleged offender? According to Section 65V, courts must without delay, order the release of the alleged offender. However, the courts must ensure that there is no evidence of application in all courts for the alleged contravention.
Section 65W: Adjourning Proceedings
If a court hearing an application adjourns the hearing, they may either:
- Order to keep the alleged offender in custody as the court considers appropriate during the adjournment
- Order the release of the alleged offender that he/she will attend a court hearing.
Section 65W will not authorise the custody of the alleged offender during adjournment for a period of more than 24 hours.
Dealing With People Who Have Been Arrested in Family Law Matters With Family Lawyers
Family lawyers are the most qualified individuals when dealing with people who have been arrested in family law matters. Our lawyers at JB Solicitors can aid with recovery orders and help clients get legal advice about parenting order contraventions. We also have mediation and arbitration services if parties want alternative dispute resolutions that won’t require court attendance.
Contact us today for more information about recovery orders, parenting order contraventions, and warrants of arrest for family law matters.
