How to stop a recovery order?
Having your child removed from your care by some other party is a scary and confusing situation to have to handle.
However, by using appropriate legal mechanisms, the court can help you track down a missing child and have them returned to your care through a child recovery order.
As with other family law matters, child recovery orders can be complex. This article will look at recovery orders, the process of applying for one, and what you can do if you have one served against you.
What is a recovery order?
As per section 67Q of the Family Law Act 1975, a recovery order is a family court order that compels the return of a child to:
- One of the child’s parents;
- A person concerned with parental responsibilities for the child;
- A person named in a parenting order with the right to communicate, live, or spend time with the child.
Who can apply for a recovery order?
A person permitted by a parenting order to have parental responsibility for, or maintain a connection with, the child in question may apply for a recovery order. Grandparents and anyone concerned about child support and welfare may also make an application.
Applying for child recovery orders
You cannot apply for a child recovery order without an existing parenting order. When you have a current parenting order before the court, a recover order care proceedings may be attached by submitting an ‘application in a proceeding’ form.
The application should have an affidavit attached to it detailing the facts in support of a child recovery order.
After the court receives the application, a court date will be set within 14 days after the filing, if practicable. The implementation may take several weeks if the order is not considered urgent.
The affidavit submitted with the application includes the relevant facts behind the recovery order. Information contained in the affidavit may include:
Relationship history: A history of your relationship, including who the parties are, when it started, the marriage date and the separation date;
Information about the children: List your children’s names and dates of birth. If an Apprehended Violence Order (AVO) is in place, attach a copy to the affidavit. Attach a copy of any current parenting plans or orders.
Caring roles before and after separation: Detail the parenting arrangements regarding accommodation, education, healthcare, etc. Provide information about who was the primary carer during the relationship and after the separation. Include details about what the primary caring role entailed.
Current parenting arrangements: Explain the current arrangements for your children’s welfare, including their accommodation, education and healthcare.
Notice of Child Abuse, Family Violence or Risk
An applicant must file a Notice of Child Abuse, Family Violence or Risk form with their recovery order application. This notice poses specific questions regarding risks to you or your children, including instances of child abuse or family violence.
Including a cover letter with your application can help to communicate urgency to the Court. A cover letter explains why the Court should hear your application immediately.
Implementing a recovery order
Once the court grants a recovery order, it takes immediate effect. Generally, it lasts for 12 months unless otherwise specified in the order. The matter passes to the relevant authority, usually the Australian Federal Police (AFP), for execution.
The AFP needs information about the background of the situation before acting on a recovery order. You need to provide as much information on anyone involved as possible through a ‘recovery order information sheet’.
International recovery of children
When you believe the other parent has taken your child overseas or may be about to, there are different steps to consider.
Contact the AFP for assistance placing your child’s name on the family law watchlist. The AFP uses this watchlist to track the movements of children who are the subject of a parenting order or other court order and identify if they are leaving the country.
When your child is in a country that’s part of the Hague Convention on the Civil Aspects of International Child Abduction, the Australian Central Authority may assist you. Resources are available on the website of the Commonwealth Attorney General’s Department.
Other relevant orders
The court may grant a location order to compel someone with information on the child’s location to divulge it. Location orders are relevant if the child is still within Australia.
Anyone eligible for a recovery order can also apply for a location order.
Commonwealth information order
A Commonwealth information order can require that an Australian government department such as Centrelink provide any information it acquires regarding the location of a child subject to a recovery order.
Any information associated with a recovery order is extremely sensitive and should not be shared.
However, there may be times when it’s appropriate to allow the media to publish details of a limited extent, along with photographs of the child and anyone who may be with them.
A publication order will detail what information is acceptable and what specific wording publications should include.
Can I fight a recovery order?
When you find that you are the recipient of a child recovery order, there are avenues you can pursue to fight against it.
The first option, if at all possible, is to take a non-legal path, connect with the other party, and negotiate a way to settle the matter between each other. If you cannot contact them, ask a friend, family member, or a family lawyer to do so on your behalf if possible.
Federal Circuit Court and Family Court of Australia
If going the legal route, you can submit a response to the court with an affidavit that explains your position and the facts relevant to your side of the story. The matter may also be heard in court, perhaps even without your presence, or a response from you, if the issue is urgent enough.
The Federal circuit courts treat each family law case as a unique matter. To understand how it approaches them, consider decisions from previous court hearings.
There are three essential points you will need to show to stop a recovery order:
- There was an urgent need for you to relocate;
- You had agreed with the other parent that you would move to a new location;
- There is a real and present threat of physical or psychological harm to you or your child lives.
What if the Australian Federal Police are involved?
When the AFP has the order referred to them, you mustn’t do anything to hinder their investigation, as this is illegal under the family law act.
You must seek legal advice as soon as possible, as this is a time-sensitive issue.
The Australian Federal Police have a family law kit, a general guide on police and family law.
Seek legal advice
When you want to apply for an emergency recovery order or fight one granted against you, seek legal assistance to understand your rights and responsibilities.
The application process for family court orders can be complex and requires the correct information for the best chance of success. An experienced family lawyer can ensure that if an application form, or written statement, is being submitted to a family court judge, it satisfies the court’s requirements.
Recovery orders, as with other family law orders, should be handled with the utmost care to protect your child’s best interests. It’s best to try and resolve the issue amicably with your former partner, if possible.
Likewise, if you are fighting against a recovery order, negotiating outside of court is the best solution for all involved. In any case, if court orders are necessary, always obtain appropriate legal aid before proceeding.
If you have any questions about this article, either call us direct at (07)5408-4470 or email us direct.
The above information is intended to be general advice only and is not a substitute for personalised advice. Because it does not consider your individual circumstances, it is not intended to be relied upon, and any loss or damage arising from any such reliance is disclaimed. Any financial or legal decisions should only occur after you have received tailored advice from a legal or financial professional.