Child recovery orders are court orders that require a child to be returned to the parent or legal guardian who has a parenting order or parental responsibility for the child. Recovery orders are governed by the Family Law Act 1975 in Australia and you must apply for a recovery order, which is then issued by the court.
This order authorises and directs persons, such as the Australian Federal Police, to recover the missing child and ensure they are returned to their parent or legal guardian or to enforce parenting orders. When submitting the application, you will need to state if you believe recovery is an urgent matter (i.e. the child’s safety and welfare are at risk from physical or psychological harm). The court may fast track the court date depending on the urgency.
Understanding Child Recovery Orders
Who Can Apply for a Child Recovery Order?
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 can apply for a child recovery order. In some cases, a grandparent or another relative may also be eligible to apply.
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When Can a Child Recovery Order Be Made?
A child recovery order can be made when a child has been taken from their primary residence without consent or has not been returned to their primary residence as per the parenting order (if one exists). It can also be made when a child is missing or is believed to be in danger.
A child recovery order is enforced by the Australian Federal Police. The police have the power to take any action necessary to find the child and return them to the person listed in the order. This may include entering and searching premises, stopping and detaining vehicles, and using reasonable force as states in Section 67S of the Family Law Act (1975).
What Happens After a Child is Returned?
After a child is returned you must notify the Court’s Registry Manager and the person (if that is not yourself) who applied for the recovery order in accordance with Section 67Y. In cases where the proceedings claim the child or children were at risk of harm, a notice will need to be filed to the Court that is hearing the proceedings in accordance with Section 67Z.
Recovery Order vs Location Order vs Commonwealth Information Order
As discussed already, a recovery order is a direction or authorisation from the Court to a person/s (usually the Australian Federal Police) to recover a child who has been unrightfully taken or withheld from a parent or guardian.
According to the Federal Circuit and Family Court of Australia, a location order is a Court order which requires a person to provide to the Court, information they have, or which they obtain, about a child (see Section 67J.
A Commonwealth information order is similar to a location order. It is a Court order which requires the “Secretary of a Commonwealth (Federal) Government department, or an authority of a Commonwealth instrumentality, to provide to the Court information in its records about the location of a child” in accordance with Section 67J. The application for a Commonwealth information order needs to be served to the person who will need to act on it at least 7 days before the Court date (Section 67N of the Family Law Act (1975); regulation 12CB of the Family Law Regulations (1984)) and stays in force for 12 months.
Legal Framework for Recovery Orders
In New South Wales, the legal framework for child recovery orders is established by the Family Law Act (1975). The Act provides the Court with the power to make orders for the return of children who have been taken or retained outside of Australia without the consent of all parties with parental responsibility or in breach of a parenting order.
Under Section 67Q, a recovery order is an order of the Court that can require a child to be returned to a parent of the child, a person who has a parenting order which states the child is to live with, spend time with, or communicate with that person, or a person who has parental responsibility for the child.
The Court may make a recovery order if it is satisfied that the child has been unlawfully taken or is being unlawfully retained. In determining whether to make a recovery order, the Court will consider a range of factors, including:
- The best interests of the child
- The nature of the relationship between the child and the person from whom the child is to be returned
- The views of the child (if they are of an age and maturity to express a view)
- Any risks to the child’s safety or well-being
- Any other relevant factors
If a recovery order is made, it is important to act quickly to ensure that the child is returned safely. The Court may issue a warrant to enforce the recovery order, and the police may be involved in the execution of the order.
It is important to note that recovery orders are not always the appropriate solution in cases of child abduction or retention. In some cases, alternative remedies, such as injunctions or location orders, may be more appropriate. If you believe you may need a recovery order, it’s best to seek legal advice as soon as possible to fully understand your options, rights and responsibilities.
Application Process for a Recovery Order
To apply for a child recovery order in New South Wales, the applicant must be one of the following:
- 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
- A grandparent of the child
- A person concerned with the care, welfare, and development of the child.
Child Recovery Order Procedure
The application process for a child recovery order involves filing an application in a proceeding and an affidavit setting out the facts in support of the application for a recovery order. If there are no parenting orders in place, the applicant will have to apply for a parenting order concurrently with a recovery order.
The application can be filed in the Federal Circuit and Family Court of Australia and pay the required fee when filing the application. The Court will then consider the application and may issue a recovery order if it is satisfied that it is in the best interests of the child.
The affidavit must include the following information:
- The details of the child, including their name, age, and current location
- The details of the person or persons the child is believed to be with
- The reasons why the applicant believes the child is not safe or is at risk of harm
- The steps taken to find the child
- Any other relevant information that supports the application.
It is important to provide as much information as possible to the Court to ensure that the recovery order is granted. The Court may also require additional information or evidence to be provided during the application process. Applicants should seek legal advice to ensure the best possible outcome of their application.
Role of Law Enforcement Agencies in Carrying Out Recovery Orders
When a recovery order is issued, law enforcement agencies such as the police may be involved in executing the order. The police have a duty to assist in the recovery of the child and to ensure the safety of all parties involved.
Law enforcement agencies may use reasonable force if necessary to enter premises and locate the child. However, they must ensure that the use of force is proportionate to the circumstances and that the safety of the child and others is not compromised.
If the police encounter any difficulties in executing the recovery order, they may seek assistance from other agencies such as child welfare authorities or family support services. And in cases where a recovery order has been issued but the child cannot be located, the police may issue an alert or a missing person report to aid in the search for the child.
Possible Outcomes of a Recovery Order
Once a recovery order is made, there are several possible outcomes that can occur:
- the child is successfully located and returned to their parent or guardian. This is the ideal outcome and is typically what the court aims to achieve with a recovery order.
- the child may not be immediately located or may be found in the care of someone who is not authorised to have them. If the person who removed the child from their parent or guardian’s care is found to have acted maliciously or with intent to harm the child. In these cases, the individual/s responsible may face criminal charges.
There are more possible outcomes, but it is important to note that the outcome of a recovery order will depend on the specific circumstances of each case and the decision of the court. This is why it’s important to seek legal advice as soon as possible.
Can You Appeal the Outcome of a Recovery Order?
If a party is dissatisfied with the outcome of a recovery order application, they may appeal the decision in accordance with the the Family Law Act 1975 (Cth) and the Family Law Rules 2004 (Cth). The appeal process is available to both the applicant and the respondent.
To appeal a decision, the party must file a Notice of Appeal within 28 days of the decision being made, which must set out the grounds on which the appeal is being made and orders you are seeking. Once the Notice of Appeal has been filed, the appellant must serve a copy of the notice on all other parties to the proceedings. The appeal is heard by a single judge of the Family Court of Australia and may affirm, set aside, or vary the decision of the Federal Circuit Court of Australia.
If a party wishes to appeal the decision of the Family Court of Australia, they may apply for special leave to appeal to the Full Court of the Family Court of Australia. The Full Court will only grant leave to appeal if it is satisfied that the appeal raises a question of law, or is in the public interest.
It is important to note that the filing of an appeal does not automatically stay the operation of the recovery order. If a party wishes to stay the operation of the order, they must make an application for a stay of the order pending the outcome of the appeal.
Appealing a recovery order outcome can be a complicated matter and it’s best to work with experts in family law.
How Can a Recovery Order Impact the Child?
A child’s welfare and best interests are the primary consideration in determining whether to grant a recovery order in New South Wales, as the process can have a significant impact on the child’s emotional and psychological well-being.
It is essential to minimise the impact of the recovery order on the child’s well-being. The court may impose conditions on the recovery order, such as allowing the child to have contact with both parents, ensuring the child’s safety and welfare, and minimising the disruption to the child’s routine and stability.
Need a Family Lawyer? Call Burke Mead Lawyers Today
Co-parenting can be difficult for many people, especially if one of the parties is reluctant to cooperate or work together in the best interests of the child. Recovery orders exist to protect children and enforce the court-appointed or court-approved arrangements that were decided to be in the best interests of the child or children.
The team at Burke Mead Lawyers are experts in family law, including recovery orders and parenting orders. Our legal team can assist you throughout this process to protect your legal rights – 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.