Recovery Applications

Family Law Recovery Application

A recovery order is often made on an urgent basis. It is an order made by the Court for the return of a child to a parent or a person who has a parenting order that states that the child lives with, spends time with or communicates with that person, or a person who has parental responsibility of the child.

Who can apply for a recovery order?

You can apply for a recovery order if you are:

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. For example, you may be the person who the child lives with or spends time with but there is no parenting order that provides this.

Filing the correct application in court

If you do not have any parenting orders before the Court and you are seeking to apply for a recovery order, you will need to file an initiating application. However, if there is a pending parenting case in Court, an application in a case is the correct court document to apply for a recovery order.

On either your initiating application or application in case, your application must state the orders you are asking the Court to make.

For example: The Marshall of the Court, all offices of the Australian Federal Police and all state and territory police officers are requested to find and recover [child/ren and date of birth] and deliver the [child/ren] to the [father/mother/other] and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place on which there is at any time a reasonable cause to believe that the [child/ren] may be found.

You must also file an affidavit in support of your application

In support of your application, you must also file an affidavit which includes details of the following, if applicable:

A brief history of the relationship between you and the person the child is presumed to be with

A list of previous Court hearings and Family Law Orders

Details about the child and where he/she usually lives

How and when the child was taken from you or not delivered to you

Where the child might be and the basis for that belief

Steps (if any) that have been taken to find the child

Why it is in the child’s best interests to be returned to you

The likely impact on the child if a recovery order is not made

Any other factors relevant to the case

The above is not a complete list and may vary depending on the circumstances of each case.

The best interests of the child is the paramount consideration

In some situations, you may ask the Court to issue other orders to help locate the child. For example:

  • A Location Order – if you breach a parenting order and you cannot be found, the Court may make a location order
  • A Commonwealth Information Order – requires a Commonwealth Government Department to give the Court information about the child’s location that is contained in or if comes into the record of a government department
  • Publication Order – allows the media to publish details and photographs of the missing child and the person they are believed to be with. This is usually a last resort and legal advice should first be sought.

When the child is returned to you, you must notify the Registry staff at the Court as soon as practicable.

Child removed from Australia

If your child is removed from Australia without your consent or without authorisation of the Court, then the Hague Convention may apply.

The Hague Convention on the Civil Aspects of International Child Abduction is an international treaty under which arrangements are made for the return of children that have been wrongly removed or retained outside their country of residence.

The Convention has set up a central authority in each signature country to deal with applications for the return of children taken to or from each country.

The Australian Government Attorney-General’s Department is the central authority for Australia. For detailed information about the Convention including what countries have agreements in place, and the application process, see the section titled “International Parental Child Abduction” on the Attorney-General’s Department website –https://www.ag.gov.au/families-and-marriage/families/international-family-law-and-children/international-parental-child-abduction

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