Child custody disputes can be emotionally charged and complex, but should always prioritise the well-being and safety of the child. In situations where a child is at risk or has been wrongfully taken or withheld from their rightful guardian, seeking an urgent recovery order may be required. But what exactly is an urgent recovery order, how can you obtain one in New South Wales (NSW), and how is it different from a standard recovery order?
Whether you have parental responsibility and are seeking to protect a child, or you are someone involved in a custody dispute, understanding the mechanisms and requirements of an urgent recovery order is critical.
In this article we explore the definition of a recovery order, the circumstances that necessitate urgency, what you need to know to apply for a recovery order, and the role of the courts in determining the outcome. By the end of this guide, you will have a clearer picture of the steps involved in applying to the family court for an urgent recovery order in NSW.
What is an Urgent Recovery Order?
A recovery order is outlined in Section 67Q of the Family Law Act and is typically sought in family law cases, specifically in situations involving child custody disputes. This order is designed to recover a child or children who have been wrongfully withheld from the rightful parent or guardian without consent.
This order can authorise or direct a person or persons, such as police officers, to take appropriate action to find, recover and deliver a withheld or missing child to a legal guardian/person with parenting orders or parental responsibility. The order can also stipulate the required day-to-day care of a child until the child is returned or delivered to the rightful parent or person concerned.
An urgent recovery order is the same, but addresses urgent and critical circumstances where a child’s welfare or safety is at risk due to being wrongfully taken, removed, or retained by one parent or guardian without the consent of the other. In urgent cases, the court can intervene swiftly and order the return of the child to their rightful guardian/person with parenting orders or parental responsibility. It is a legal mechanism intended to prevent harm to the child and restore the custodial arrangements approved by the court.
The court considers the child’s best interests as paramount when assessing and granting such orders, aiming to ensure the child’s safety and well-being above all else. If the application is successful, the recovery orders will be sent through to the Australian Federal Police. They will be authorised to recover the child and return them to the parent or persons the child lives with according to the relevant parenting order.
Grounds for an Urgent Order
Grounds for an urgent recovery order typically involve situations where a child’s well-being or safety is at risk due to their removal or retention by one parent or guardian without the consent of the other. Some examples of grounds for an urgent recovery order may include:
-Child Abduction or Kidnapping: If one parent or guardian has taken the child without the other parent’s consent, especially across state or international borders, it can be a strong ground for a recovery order.
-Risk to the Child’s Safety: When there is evidence of physical or psychological harm, abuse, neglect, or exposure to dangerous situations, the court may grant a recovery order to protect the child.
-Violation of Court Orders: If a recovery order is necessary to enforce or uphold existing court orders related to child custody or visitation, especially if one party is not complying with those orders.
-Wrongful Retention: When a parent or guardian has failed to return the child after a visitation period or custody arrangement, and this retention is causing distress or harm to the child or the left-behind parent.
-Preventing Child Relocation: If one parent has unilaterally relocated with a child without the consent of the other parent or without court approval, a recovery order may be sought to return the child on an interim basis whilst the Court further considers at a final hearing if a relocation should be allowed.
-International Abduction: In cases involving international child abduction, where a child has been taken to or retained in another country in violation of laws and treaties, a recovery order may be sought through relevant authorities.
-Other Emergency Situations: Any other emergency situations where the court believes that the child’s best interests require immediate intervention to protect their welfare and safety.
It’s important to note that the specific grounds for an urgent recovery order can vary from case to case, and each situation is assessed individually by the court. The court’s primary concern is the well-being and best interests of the child, and how urgently a case is treated will depend on those concerns. To have the best chance when submitting urgent recovery orders, you should seek legal advice from an experienced family lawyer.
Applying for an Urgent Recovery Order
The process for submitting an urgent application for recovery orders is the same as submitting standard orders and is best done through a family lawyer. What differs is how quickly your case can be seen by a judge, but usually the first court date will be listed within 14 days of the application being filed for a standard order.
In cases that are urgent, your lawyer will request that the application be heard on the short service list. This list is reserved for urgent applications and depending on how busy the Court is, as well as how serious the risk of harm to the child/children is, you can be before a Judge within the week. In the slow moving Family Law system a week is an extremely quick turnaround.
A judge will then assess whether it is in the best interests of the child/children to be returned to you. If your Application is granted a number of powers are granted to State and Federal Police, this includes authorising them to recover and deliver the child to you. They can do this by searching vehicles, vessels or aircrafts and entering and searching any premises or place where they have reasonable cause to search for the child/children. It is an exceedingly powerful set of orders and aims to have the child/children returned to your care as soon as possible.
Enforcement & Penalties for Non-Compliance with an Urgent Order
In addition to all the powers granted by a recovery order, it can also prohibit the other parent from taking or withholding the child/children again. Not only is this a legally enforceable order that authorises State and Federal Police to locate and recover the child, it can even authorise the arrest (without warrant) of the person who breaches the orders and takes the child/children again.
In regards to breaches of family law court orders, under Section 70NFB of the Family Law Act the court has the power to impose fines, a sentence of imprisonment for up to 12 months for serious breaches, order the party who committed the breach to pay all costs for the other party or make additional parenting orders to compensate the other person for time lost.
Work with Experienced Family Lawyers - Call Burke Mead Lawyers Today
The team at Burke Mead Lawyers are experts in family legal services, including urgent recovery orders or urgent parenting orders. Our legal team can assist you throughout this process to protect your legal rights and help achieve the best outcome for your family – contact Burke Mead Lawyers today.
About the Author
Ebony Purcell is an Associate in the Family Law Team at Burke Mead Lawyers. Ebony’s experience as a solicitor exclusively in family law spans more than 10 years advocating for her clients. She also regularly appears for clients in the Federal Circuit and Family Court of Australia both locally and throughout the country.