RECOVERY ORDERS IN FAMILY LAW
By Stone Group Lawyers on March 15, 2019
What are Recovery Orders?
A Recovery Order is an Order made by the Court allowing a third party (usually the Australia Federal Police) to enter premises and recover a child. A Recovery Order is typically made in circumstances when a Court Order making a parent return a child to a place or person has not been complied with, or there are special circumstances. Recovery Orders are most commonly used when a child has been taken from someone who ordinarily cares for them or when the child has not been returned to their carer as per their parenting Order.
Who can apply for a Recovery Order?
A person with care of a child can seek a Recovery Order for three main reasons:
- If you are part of a Parenting Order that involves you living, communicating or spending time with the child;
- If you have any other parental responsibility to the child by way of a Parenting Order; or
- If you are a person concerned with the care, welfare and development of the child regardless of whether or not you are part of a Parenting Order for that child.
What do I need to do to apply for a Recovery Order?
In situations where the child has already moved but remains within Australia, an application for a Recovery Order can be filed seeking a Recovery Order to return the child to where they ordinarily reside.
The application needs to be filed in the Federal Circuit Court of Australia unless you currently have a parenting case in the Family Court of Australia. If you do have a current parenting case in the Family Court, your application should instead be filed in that Court.
How will the Court decide?
The paramount consideration for the Court in deciding whether or not a Recovery Order should be made is what is in the best interests of the child.
How does the recovery process work?
Once the Recovery Order is granted, the Court will make specific requirements with respect to the way in which the recovery of the child will take place.
The Court is able to make Orders that require the child to be dropped to the parent seeking the recovery at a certain time in a specific place or alternatively they may make an Order authorising certain person, for example the police, to take necessary steps to locate the child and return them to your care.
Upon return of the child, you will be required to notify the Registry staff at the Court as soon as possible.
What if my child has been taken overseas?
In circumstances where you believe that the child may be removed from Australia and taken overseas, you are able to seek an Order from the Court preventing this and requiring that the child is placed on the Family Law Watchlist.
If the child has already been taken overseas, the Hague Convention on the Civil Aspects of International Child Abduction may apply. This international treaty is used to make arrangements to have the child returned who has been wrongfully removed or retained outside the country in which they “habitually reside”.
Obviously, it is best to prevent a relocation of a child, and if you are concerned that the other parent is going to remove a child, steps can be taken to prevent this before it occurs. Usually, such steps need to be taken promptly.
It is advised that you seek professional legal advice specific to your individual circumstance to determine whether or not a Recovery Order is suitable for you and your child.
Contact our Family Law Team at Stone Group on 1300 088 440 to arrange a free 30 minute consultation to discuss your matter, and how best to proceed for you and your child.