When your child is taken or kept from you without your consent, it can be an incredibly stressful and emotional time. When and if this should occur, there are few avenues available to ensure the prompt and safe return of your children to you.
First and foremost, if you have concerns that the child or children are at an immediate risk of harm, you can make a report to the Police. Depending upon the contents of your report, the Police are able to perform a welfare check to ensure the children are safe. If they appear to be at imminent risk of harm, the police have the power to remove the children and return them to your care. If however the children are not deemed at an imminent risk of harm, the Police do not generally have the power to force a return of the children to you.
Otherwise an Application may be made to the Federal Circuit and Family Court of Australia seeking orders for the return of your children to you. This is often referred to as a Recovery Application, or a Recovery Order.
Why a Recovery Application?
The main reason why you would seek recovery orders is to ensure that the orders will be enforced. This is particularly important in circumstances where the person who has taken or withheld the child has shown that they either will not comply with an order of the Court, or are presently in breach of court orders. If the person who has the care of the child you are seeking be returned does not comply with an order made for their return, a Recovery order will provide powers to the Australian Federal Police to locate, recover and return the child to your primary care.
You are also able to seek ancillary orders to your Application which will grant your application urgency, and the ability for the ordinary service requirements to be dispensed with. This will, if accepted by the court, expedite your application to hearing much quicker than an ordinary parenting application.
What Is a Recovery Order?
A Recovery Order is a court order made by the Federal Circuit and Family Court of Australia (FCFCOA) that:
- Direct a person (such as a parent, relative, or another individual) to return a child to your care,
- Authorises or direct the Australian Federal Police (AFP) or state/territory police to locate and recover a child, and
- Provide other directions necessary to ensure the safe and proper return of the child to you.
Who Can Apply for a Recovery Order?
According to section 67T of the Family Law Act 1975, you may apply for a Recovery Order if you are:
- A person the child lives with, spends time with, or communicates with under a parenting order,
- A person who has parental responsibility for the child, or
- A grandparent, or another person who is concerned for the care, welfare, or development of the child.
When Might You Need a Recovery Order?
You might consider applying for a Recovery Order if:
- The other parent has failed to return the child after an agreed visit,
- A parent or relative has taken the child without consent, or
- As a means of enforcing a Court order that is not being complied with.
The court will always consider the best interests of the child as the paramount concern when exercising their discretion in making a Recovery Order.
How to Apply for a Recovery Order
Here’s a step-by-step overview of how to apply for a Recovery Order in Australia:
- Prepare your application
- You’ll need to complete an Initiating Application and an Affidavit explaining the circumstances — such as when the child was taken, where you believe they are, and why a Recovery Order is necessary.
- If no parenting order exists, you must also seek parenting orders at the same time.
- File the application
- Applications are filed in the Federal Circuit and Family Court of Australia (FCFCOA).
- You can file online using the Commonwealth Courts Portal or in person at a court registry.
- Attend the court hearing
- The court will assess the evidence and consider the child’s best interests before deciding whether to issue a Recovery Order.
- In urgent situations, the court can make orders on an ex parte (without notice) basis.
- Enforcement by police
- If the court grants the order, it will usually authorise the AFP or state police to locate and return the child safely.
What Happens After a Recovery Order is made?
The Court might make other orders at the same time as making a recovery order, to:
- Reinforce or vary existing parenting orders,
- Make fresh orders about contact arrangements between the child and non-resident parent or party to the proceedings, or
- Refer the matter for mediation or family dispute resolution to help the parties come to a resolution by agreement.
Need Help Applying for a Recovery Order?
If your child has been taken or not returned as agreed, it’s important to act quickly. A family lawyer can help you prepare your application, present your case clearly to the court, and ensure the child’s safe return.
Written by
Sophie Wilson
Family Law Solicitor
It is also important to speak to a family lawyer first. We have experienced solicitors in Newcastle and the Central Coast area that can help you through your family law matter.
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