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13 November 2020
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Applying for a child recovery order in NSW: What you need to know

Has your ex-partner taken your child without permission or refused to return them?

As a parent, nothing is more stressful than your child not coming home as planned – particularly if your ex-partner is refusing to bring them back. While you should always try to talk through a solution with your ex-partner first (be it directly or via trusted family and friends), sometimes legal action is the only way forward. Cue the Recovery Order, a court document issued to enforce the return of your child as soon as possible.

Below, we explore your rights and responsibilities in the event that your ex partner takes or keeps your child without permission. Equipped with a better understanding of why, when and how to make a recovery order, you can seek the support you need to get your child home safely.

What is a recovery order?

A recovery order is an order made by the Family Court, which demands the child be returned to the applicant. To apply for a recovery order, you must be a:

  • Parent of this child; or
  • Grandparent of the child; or
  • Caregiver with a parenting order, who either lives, spends time or communicates with this child; or
  • Person with parental responsibility for this child; or
  • Person who is concerned for the child’s welfare and care

A recovery order can authorise a specific person or organisation to locate and return your child, as well as provide daily childcare requirements until this occurs. It may also be used to prevent your ex-partner from taking your child again, permitting arrest without warrant if they attempt to do so in the future.

When can you make a recovery order?

With no minimum time frame specified in the Family Law Act, you can apply for a recovery order as soon as you feel it’s required.

That said, you should always ensure this is an appropriate course of action first, confirming that you are dealing with an intentional effort to withhold your child rather than a legitimate misunderstanding, mistake or barrier.

What is the process of a recovery order?

1. Applying for a recovery order

Once confident that legal action is required, you’ll need to file an application for a recovery order with the Federal Circuit Court. The only exception to this is if you have ongoing parenting proceedings in the Family Court, in which case you must file the application there.

Note that you’ll also be required to file an affidavit alongside your recovery order application. This document shares key information about your situation to inform the Court’s decision, including:

  • An overview of any prior Family Court orders and hearings
  • A brief history of your relationship with the accused parent
  • A description of the child and their primary residence
  • Why you believe it’s in the child’s best interests to be returned, as well as the potential effect not issuing a recovery order may have on the child
  • A detailed account of how and when the child was taken from or not returned to you
  • Where you believe the child may be and why
  • Any steps already taken in an attempt to locate and recover the child
  • Any other relevant information

Lastly don’t worry if you do not have a parenting order in place, as you are able to request one on the recovery order application form. If doing this, please make sure to seek legal advice on its wording and conditions to prevent potential loopholes.

2. Considering your child’s best interests

When it comes to the Court’s decision to issue a recovery order, your child’s best interests come first.
The Family Court judge will always strive to reach a solution that facilitates your child’s relationship with both parents and protects them from physical and psychological harm. In an effort to ensure your child is returned in a manner that minimises undue stress, the Court may begin by requesting that your ex-partner gives them back voluntarily.

3. Issuing a recovery order

If such a request is refused, the Court will issue a recovery order authorising an individual or organisation – generally the Australian Federal Police (AFP) – to take measures to locate and return your child to you.
From there, you’ll need to fill out a Recovery Order Family Law Information Sheet and present a copy of the order to the person or persons authorized to recover your child.

4. Applying for additional orders if necessary

The more information the authorities have to work with, the faster they can find and retrieve your child. Unfortunately, it may be the case that you have no idea where your ex-partner has taken your child.
If so, there are additional orders you can apply for to support your search, including a:

  • Location Order – demands your ex-partner to tell the Court where your child is
  • Watchlist Order – prevents your ex-partner from leaving Australia with your child
  • Publication Order – permits the media to publish information and images of your child and ex-partner in a bid to raise awareness among the public
  • Commonwealth Information Order – requires a Government Department to provide the Court with any records that detail your child’s whereabouts

5. Notifying registry staff of return

As soon as the order has been made, the AFP can begin searching for your child. Once retrieved, the AFP only tends to bring your child to you if you’re living nearby. Otherwise, you’ll need to collect your child from an agreed location.

Please make sure to notify the registry staff at the Court as soon as your child is returned. This final yet fundamental step will inform all relevant parties that your child is now safe and sound.

How long do child recovery orders take?

While very urgent recovery orders can be issued almost instantly, it may take over a week for less time-sensitive matters.

If required, the Court will try its best to fast-track your court date. To speed up your application process further, seek the support of an experienced Family Lawyer who can explain your rights from the outset and guide you through the process as efficiently as possible.

What to do if your child has been brought overseas

We understand how distressing it is to learn that your child has been taken out of the country against your wishes – even more so if your ex-partner is refusing to bring them back to you. Know that we are here to put you in touch with the right support services.

For instance, the Australian Central Authority will help you to contact and recover your child if they have been brought or kept overseas without your consent. This authority is in charge of administering the Hague Convention on the Civil Aspects of International Child Abduction, a treaty between Australia and several other nations that sets out the legal process for retrieving a child who has been taken from their country of residence.

We are here for you every step of the recovery order process

Not knowing where your child is or when they’ll be returned to you is extremely difficult, especially if your ex-partner is refusing to cooperate. Thankfully, a recovery order will help you to retrieve your child as soon as possible.

At Joplin Lawyers, we believe there is light at the end of the tunnel – no matter how distant it may seem. Our Family Law team is here to guide you throughout the recovery order process, ensuring that your child gets home safely. Please contact us for expert and compassionate support with your legal matter today.