Helpful things to know about a Recovery Order
A recovery order is an application that can be made to the court in the unwelcoming event of your child being taken away from you against your permission or not being returned to your care.
What is a recovery order?
A recovery order is an order of the court that requires a child to be returned to a:
- parent of a child
- person who the child, lives with, spends time with or communicates to under a parenting order
- person who has parental responsibility for the child
A recovery order has the authority to:
- Direct relevant personnel, such as police officers, to take action to find the child and return them to the people listed above
- Provide how a child should be looked after before their return
- Prohibit the child from being removed again by the person who initially took the child
Who can apply for a recovery order?
Section 67T of the Family Law Act 1975 lists who can apply for a recovery order:
- Grandparent of the child
- A person who has been granted parental responsibility of the child by a parenting order
- A person who the child lives under as granted by a parenting order
- A person who the child spends time with or communicates to under a parenting order
- A person concerned with the care, welfare and development of the child
How do I apply?
An application should be filed with the Federal Circuit Court unless you already have a current case in the Family Court. If you have a current case in the Family Court, the recovery order should be filed there by way of an application in a case.
An application of a recovery order can be made if there is an existing parenting order in place. If there are no parenting orders in place, you will have to apply for a parenting order concurrently with a recovery order.
You will need to include an affidavit with your application. An affidavit is a written statement that allows you to present facts to the court. The affidavit should include relevant details about the matter such as:
- a description of the relationship between you and the person the child is presumed to be with
- where the child usually lives
- a list of previous court hearings and family orders
- how and when the child was taken from you or not delivered to you
- why it is in the best interest for the child to be returned to you
- other information that is relevant to your matter
An application needs to specify what orders you are seeking from the court.
Legal assistance should be sought to help prepare an affidavit, navigate court requirements and in applying for court orders.
What do I do next?
A date will be set for when the court can hear your application. The court hearing may require the other person to attend.
In the instance of an urgent case, the court can hold the hearing “ex parte”, which means the court will hear the matter without the presence of the other party.
If it is an urgent matter, you can write to the court stating that it is so and explain the reasons why.
The court may fast track the court date depending on the urgency.
The court will decide whether to grant you a recovery order. In assessing whether to grant a recovery order, the court will consider “the best interests of the child“. The court will consider factors like the effect of removing the child from the person they are presumed to be with.
Recovery orders will take immediate effect, once granted.
The court itself is not responsible for retrieving the child.
The court may make an order for your child to be returned to you at a specific location and time.
An order will usually direct other persons, usually The Australian Federal Police (AFP), to recover the child for you.
You will have to give the order to the relevant persons.
The AFP will then act on the order issued by the court.
The AFP will co-ordinate the recovery of the child with state and territory police services. If the recovery is possible, you will have to be nearby to receive the child. This might require you to travel.
A recovery order remains in force for the period specified in the order or 12 months from the date of issue, whichever time period is shorter.
What if I don’t know where my child or children are?
We understand this might be an alarming situation.
If there are no parenting orders preventing you from contacting the person the child is presumed to be with, you can do so to determine the whereabouts of the child or children.
You may also ask friends or mutual contacts to contact the other person for you to find out the location of the child.
If contacting the other person is not possible, there are other avenues you can take.
Legal avenues you can take include other orders of the court that can help find the child:
- A Location order: requires a person or government agency to provide the court with information about the child’s location
- A Commonwealth Information Order: requires an Australian Government Department, such as Centrelink, to provide the court with information about the child’s location should that department have or become aware of such relevant information.
- Publication Order: this order is usually used as a last resort and will depend on the nature of the case. A Publication Order permits the media to release details to the public about the missing child. Information released might include photographs of the child and who they are last believed to have been with.
What if my child is being taken overseas?
If you are concerned that your child may be taken out of Australia without your permission, you should seek legal advice and contact the police if the matter is urgent.
The Australian Federal Police has a “Family Law Watchlist” that alerts them to the movement of children who have parenting orders or an injunction that limit or prevent the child’s travel overseas.
If you qualify, you can request for you child to be put on the list.
There are certain pre-requisites that have to be met before you can do so.
Normally, it is a Commonwealth offence for someone to take or send a child from Australia if there is an order that limits and prevents the child from travelling overseas, if there are pending court proceedings or if there are pending parenting orders or an appeal to parenting orders.
More information and helpful contacts can be found on the Australian Federal Police website.
What if my child has already been taken overseas?
In the event that your child has already been taken overseas or has not been returned to Australia, it is best to seek legal advice and contact the Commonwealth Attorney-General’s Department for assistance.
The Commonwealth Attorney-General’s Department is responsible for applications for the return of children taken from Australia.
Australia is part of an agreement with other specific nations called the Convention on the Civil Aspects of International Child Abduction, also known as the Hague Convention.
This is a treaty that governs the return of an abducted child to their country of residence.
The treaty will only pertain to countries who have signed the treaty.
If you think your child may be in a country that is not apart of the Hague Convention, you should seek legal advice.
More information about a matter where the child has been taken overseas or not returned can be found on the Attorney-General’s Department website.
How do I respond to a recovery order?
If an application for a recovery order is made against you, you can file a response at either the Federal Circuit Court or Family Court.
The matter may be heard in court. If the case is urgent, a court may hear the matter without your presence in court.
If a recovery order has been made against you, you should seek legal advice.
Should a recovery order against you be referred to the Police, it is worthy to note, you must not prevent or hinder a police officer in the execution of a recovery order.
This is because under section 67X of the Family Law Act 1975 it is an offence to do so.
How can I find help?
The Australian Federal Police has a list of helpful contacts available that details the numbers of relevant offices and departments such as the Federal Circuit Court and Family Court, The Attorney-General’s Department and Passports Office.
You can contact a family law solicitor or Legal Aid to assist you with legal matters.
SPEAK TO ONE OF OUR LAWYERS.
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.