What is a Recovery Order in Family Law?
A Recovery Order is a legal order issued by the Federal Circuit and Family Court of Australia, typically under the Family Law Act 1975 (Cth) (“the Act”), to ensure that a child is returned to a parent or guardian if they have been unlawfully taken or are being withheld.
This Order is commonly sought in situations where a child is taken by one parent (or another individual) without the consent of the other parent, or when the child is in the care of someone who is not legally authorised to do so.
Recovery Orders are an essential legal tool to resolve disputes over child custody and ensure children are placed in safe and appropriate living arrangements. They are often used in cases of parental abduction or when a child is kept from their primary caregiver or a parent with whom they have a legal right to live.
When can you apply for a Recovery Order?
You may apply for a Recovery Order if:
- A child is taken or detained without the consent of a parent or legal guardian;
- A child is kept from you in breach of a parenting order made by the Court; or
- The child is in the case of someone who does not have legal authority to care for them.
Recovery Orders can be sought as part of ongoing family law proceedings, including custody disputes, or when a parent fears that their child is at risk of being unlawfully taken or detained. These Orders can also be requested in emergency situations if there is a concern for the safety and well-being of a child.
How to Apply for Recovery Orders?
To apply for a Recovery Order, the following steps are typically involved:
- An application is made to the Federal Circuit and Family Court of Australia. The application includes details about the child, the parties involved, and the reasons for the request for the Recovery Order.
- It is important to provide the Court with evidence that supports your claim that the child is being unlawfully withheld or taken. This can include parenting orders, evidence of abduction, or other relevant documents that demonstrate the need for the Recovery Order. Such evidence is usually annexed to an Affidavit that is signed by you and accompanies your application.
- Once you have filed your application and supporting affidavit, your matter will be listed before a Judicial Registrar or Judge who will consider your application. The Judicial Registrar or Judge may issue a Recovery Order if they believe it is in the child’s best interests. The hearing may be expedited in urgent cases where the child’s safety is at risk.
- If the Court is satisfied that the Recovery Orders is warranted, it will issue the Recovery Order, which can be enforced by either the Police or other authorities. The Order may also include directions about how and when the child should be returned to the Applicant.
What does a Recovery Order do?
A Recovery Order directs a person (often the parent or guardian who has the child) to return the child to the person who holds the legal right to care for the child. This could be the child’s other parent, a legal guardian, or another person with parental responsibility. The Order is typically enforceable by law enforcement, and Police may be involved in the physical recovery of the child.
There are several types of Recovery Orders:
- Return of the Child: This is the most common type of Recovery Order, where the child is ordered to be returned to their primary caregiver or legal guardian;
- Prevention Order: In some cases, a Court may issue an Order preventing a parenting form removing the child from their home or area; or
- Assistance Orders: The Court may Order that authorities, such as the Police, assist in recovering the child from a location, if necessary.
How the Court decides whether to Grant a Recovery Order
When deciding whether to grant a Recovery Order, the Court will consider a number of factors, including:
- The best interests of the child: The primary consideration for the Court is always the best interests of the child. This includes the child’s physical and emotional safety, the relationship between the child and their parents or caregivers, and the child’s wishes, if they are old enough to express them.
- Existing parenting Orders: If there is a current parenting Order in place, the Court will look at whether it has been breached and whether the Recovery Order is necessary to enforce the Order.
- Evidence of Risk: The Court will assess whether there is a risk of harm to the child if they are not returning, including both physical and emotional harm.
- Parental Responsibility and Legal Rights: The Court will also consider the legal rights of the parents, particularly if there is a shared parenting arrangement or if one parent has sole custody of the child.
Enforcing a Recovery Order
Once a Recovery Order is issued by the Court, it becomes legally binding. If the person who has the child refuses to comply with the Order, law enforcement agencies such as the Police can be involved to recover the child. In some cases, the Police may use force if necessary to ensure the child is returned safely.
It’s important to note that if a parent does not comply with the Recovery Order, they may be in breach of a Court Order, which can lead to serious legal consequences, including possible contempt of Court charges.
Need Legal Advice?
If you believe a Recovery Order is necessary to ensure the safe return of your child or if you’re facing an issue involving the unlawful detention of your child, it’s important to seek professional legal assistance. Our experienced team can guide you through the process of applying for a Recovery Order, preparing the necessary evidence by way of Affidavit, and advocating for your child’s best interests in Court.
To speak with one of our family law experts, please contact our office on +61 3 9101 8532.