If your child has been taken from you, then you can apply to the court for what is known as a ‘recovery order’ under the Family Law Act. Whether there are Court Orders in place or the other parent is contravening a current Order by withholding the child, you should seek independent legal advice about your situation as soon as possible.
What is a recovery order?
A recovery order is defined in section 67Q of the Family Law Act as an Order made by the Court requiring the return of a child to:
- A parent of the child;
- A person who has a parenting order that states the child lives with, spends time with or communicates with that person; or
- A person who has parental responsibility for the child.
A recovery order can authorise a person or persons, such as police officers, to take appropriate action to find, recover and deliver a child to one of the people listed above.
If required, the recovery order can also provide directions about the day-to-day care of a child until the child is returned or delivered.
A recovery order can also prohibit a person from taking possession of a child or removing them from the country, if the court sees fit.
In a circumstance like this, the recovery order can authorise the arrest of the person who removes or takes possession of the child, without the need for a warrant.
How do I apply for a recovery order?
Only certain people connected to the child can apply for an urgent recovery order. In accordance with the Family Law Act, you can apply for a recovery order if you are:
- A person who the child lives with, spends time with or communicates with as stated in a parenting order;
- A person who has parental responsibility for the child in a parenting order;
- Grandparent of the child; or
- A person concerned with the care, welfare and development of the child.
If you meet one of the above criteria, then you can apply for a recovery order through the Federal Circuit or Family Court of Australia.
If you do not currently have a parenting order in place with your former partner at the time you file the recovery order, you should apply for parenting orders that deal with the child’s living arrangements and/or parental responsibility for the child at the same time.
When you apply to the relevant court, you must clearly state on the application form which orders you’re asking the court to make. Your lawyer will help you with this and ensure your application is filled in correctly and that the Orders are drafted in a particular way, so as to ensure that the police can act on the Orders if necessary.
Along with your application form, you’ll also need to file an Affidavit to support your application. The more information you can provide to the court in support of the need for a recovery order, the more appealing your application will be.
Your Affidavit should include as much of the following information as possible:
- A concise history of your relationship with the child’s other parent;
- A list of any other previous court hearings and any family law orders;
- Details about the child’s living arrangements prior to them being withheld;
- A summary of how the child was taken from you or not delivered to you;
- Your thoughts on where the child might be and any evidence you have that would support that belief;
- Why you believe it’s in the child’s best interests to be returned to you;
- The likely impact on the child if a recovery cannot be made; and
- Any other factors you think are relevant to the case.
In addition, your chances of recovering the child will depend on how much information you can provide the authorities about their potential whereabouts. It is therefore important to provide as much information as you can about where the child could be, including the names and addresses of your former partner and their family members, if these are still known.
If you do not know their whereabouts, you may be able to apply for substituted service of the court documents on your ex-partner (e.g. by way of Facebook or other electronic means) so that they become aware of the proceedings and have notice of the requirement for them to respond to your Application and appear at Court.
Alternatively, you may also be able to apply for a ‘Location Order’. A location order is a court order made under s67M of the Family Law Act that requires a person or government agency, such as the Child Support Agency, to provide the court with information about a child’s location.
What happens next?
When deciding whether a recovery order should be issued, the court will always consider what is in the best interests of the child.
If the court grants a recovery order, then it will direct another authority to find the child. In most instances, this is the Australian Federal Police. If this is the case, you will be asked to provide them with a copy of the order before they can begin their search. You will also be asked to fill in a Recovery Order Family Law Information Sheet. Your lawyer can help you access these forms and fill them out properly.
If your child is found, the Australian Federal Police will not recover them until you are close by, so you may need to travel with the police to recover the child when they are found.
Once the child has been returned to you, you are obliged to notify the registry staff at the court as soon as possible.
Do you need a recovery order?
If your child has been taken from you or has not been returned to you as planned, then please get in touch with our experienced family lawyers. We’re one of Queensland’s leading family law firms, and we have decades of experience in dealing with recovery orders and family law matters.
We understand that this is a stressful and traumatic time for you, so we always act with empathy and understanding in assisting you in making your application to have your child returned to you. We can help you apply to the court and ensure you have the best possible chance of having your child returned.
We take into account the constantly changing business and personal circumstances of our clients.