1. What are recovery orders?
A recovery order is an order that can require a child to be returned to a:
- parent of the child
- person who has a parenting order that states the child lives with, spends time with or communicates with that person, or
- person who has parental responsibility of the child
Once a recovery order has been issued, it is preferred that the child is returned to the parent by the other parent without the intervention of the police. If this does not occur, the responsibility for returning the children will be assigned to the Australian Federal Police.
In some instances, this order can prevent the person from removing or taking possession of the child. If the person removes or takes possession of the child after such order has been issues, a recovery order can authorise the arrest (without warrant) of that person.
2. Who can apply for a recovery order?
Persons who can apply for a child recovery order includes:
- A person who the child lives with, spends time with or communicates with and this is set out in a parenting order
- The grandparents of the child, or a person who is concerned with the care, welfare and development of the child. It is not required that a parenting order states that you are concerned with the care of the child.
- A person who has parental responsibility in a parenting order for the child.
3. How can you apply for a recovery order?
When you apply for a recovery order, you need to file an affidavit which supports your application. Some things that may be included are:
- A summary of your relationship with the person the child is thought to be with
- Details of the previous court hearings and family law orders
- Any details about the child and where they usually live
- Information of when and how the child was taken from you or not returned to you
- Where the child might be and why you believe that. If you have information about the likely whereabouts of the child, the chances of recovering the child are higher
- A summary of the steps that you have taken to find the child
- Information about why it is in the best interest of the child to be returned to you and the impact if the order is not made
The above list is not exhaustive. If you do not have a current parenting order in place, you are able to apply for one at the same time as the recovery order. On the application form, you must state what orders you are asking the court to make.
4. What are the factors that the courts will consider when making a child recovery order?
As with all cases relating to the care of children, the primary factor which is taken into consideration when the court makes their decision is the best interest of the child. The best interest of the child is also the primary factor in determining whether or not the involvement of law enforcements is needed.
There are other factors which the court will take into consideration. This includes the disruption of the child’s primary care and whether or not there is a risk of harm to the child.
5. If the recovery order is successful, what happens next?
If the application of the recovery order is successful and both parents of the child are present at the hearing, a recovery order will usually set a date for which the child needs to be returned to the applicant of the order.
As mentioned above, courts can also assign the responsibility of returning the child to the Australian Federal Police.