In certain circumstances where the other parent of your child withholds your child from you, it may be necessary to seek an urgent “recovery order” from the Court. A recovery order is an order which requires that a child be returned to the appropriate person/s. A court may make recovery orders if your child has been taken from you and has not been returned to your care. A recovery order can direct police officers to take appropriate action to find and recover the child, including the stopping and searching of vehicles. In addition a recovery order can prohibit the person from again removing the child. If a child is removed again, a recovery order can authorise the arrest (without warrant) of the person who again removes the child.
Who can apply for a recovery order?
- The parent of the child;
- A person who has a parenting order that states that the child lives with, spends time with or communicates with that person or;
- You are a person who is concerned with the care, welfare and development of that child (such as their grandparents or relatives).
How do I apply?
An application for a recovery order should be filed in the Federal Circuit Court unless you have a current parenting case in the Family Court, in which case your application should be filed there. If you do not already have parenting orders then it is advisable to apply for a parenting order at the same time.
You will also need to file an affidavit to support your application. We can advise you on how best to draft your affidavit depending on the circumstances of your case. You will also need to compile as much information as you can on your child’s whereabouts to assist the police with the return of the child.
What happens at court?
In deciding whether to make a recovery order, the court must regard the best interests of the child as paramount. The Court has discretion as to whether to make a recovery order and it is important to ensure that you have sufficient and properly prepared evidence to prove that a recovery order is necessary. The Court may either make an order which requires a person to return the child to you or authorise other persons (such as a police officer) to take the appropriate action to recover the child for you.
The Australian Federal Police will only recover the child in exceptional circumstances and you may need to be close by to receive the child. This means that you may have to travel to collect your child when he/she is recovered.