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 for the child by a parenting order
- A person whom the child lives under as granted by a parenting order
- A person whom the child spends time with or communicates under a parenting order
- A person concerned with the care, welfare and development of the child
How to Apply for a Recovery Order?
- Determine the appropriate court: If you don’t have an ongoing case in the Family Court, file your application with the Federal Circuit Court. However, if you have an existing case in the Family Court, submit the recovery order application there as part of your ongoing case.
- Assess the need for a recovery order: If there’s already a parenting order in place, you can apply for a recovery order. If no parenting orders exist, you must simultaneously apply for a parenting order along with the recovery order.
- Prepare an affidavit: Draft an affidavit, which is a written statement presenting relevant facts to the court. Include details such as the relationship between you and the person the child is presumed to be with, the child’s usual residence, previous court hearings, how and when the child was taken or not delivered, why it’s in the child’s best interest to be returned to you, and any other pertinent information.
- Specify requested orders: Clearly outline the orders you are seeking from the court in your application.
- Seek legal assistance: Consider obtaining legal support to help prepare your affidavit, understand court procedures, and navigate the process of applying for court orders.
Learn what steps you can take next
How Long Does a Recovery Order Take
If a matter is considered urgent by the court, a recovery order may take within 1 – 5 days of applying. If it is deemed as not urgent, a recovery order may take 2 – 6 weeks.
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 has already been taken overseas?
If 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 to Stop a Recovery Order
The best way to understand how to stop a recovery order is by reading previous cases and understanding what the court looks at when making a recovery order.
Stopping a recovery order requires you to demonstrate the following things:
- There is a risk of family violence or harm towards you or your child;
- That you had previously reached a consent position with the other parent about you moving to another location;
- That there is an immediate need for you to be in your new location.
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 also reach out to services such as Relationships Australia and Family Relationships Online, amongst other services such as counselling, to provide support during a difficult time.
You can contact a family law solicitor or Legal Aid to assist you with legal matters.