Australian Law acknowledges the presumption that it is in the best interests of a child that both parents equally share parental responsibility after a separation or divorce case. However, sometimes, one parent doesn’t permit their spouse to have contact with the child.
Even worse, they may have taken the child somewhere without informing the other parent. In this situation, one must seek legal advice from a family lawyer to ask the Family Court for a location order and/or recovery order.
Location Orders and Recovery Orders
Location and recovery orders are the primary mechanisms for recovering a missing child.
Location order
Purpose
A Location order is designed to obtain information about the child’s location. It is used when the whereabouts of a child are unknown, and there is a need to locate the child.
Who It’s Against
This order can be made against any person or entity believed to have information regarding the child’s location. This includes individuals, government departments, organisations, or any other entity with relevant information.
Outcome
The primary outcome of a Location Order is to gather information. It compels the person or entity to provide details about the child’s location to the Court. It does not authorise the physical recovery of the child.
When a parenting order isn’t in place yet, or there’s only a parenting plan or verbal agreement, the law firm assisting may help secure a parenting order along with the location order.
Recovery Order
Purpose
A Recovery Order is aimed at a child’s physical recovery and return. It is used when a child needs to be returned to a parent, guardian, or a person with whom the child lives, spends time, or communicates, according to a previous court order or agreement.
Who It’s Against
This order is generally directed towards the person who has taken or retained the child or is preventing the child from returning to their lawful guardian. It can authorise or direct a person, usually a police officer, to recover the child.
Outcome
A Recovery Order aims for the physical recovery and return of the child to the applicant or another specified person or place. It may also include provisions to prevent the child from being removed again. This may involve placing the child on the Family Law Watchlist to prevent international travel.
Who can apply?
As per the Federal Circuit and Family Court website, people who may apply for a recovery or location order are the following:
- A person with whom the child lives, spends time or communicates with, according to a parenting order;
- A person who has parental responsibility for the child according to a parenting order;
- A grandparent of the child; or
- A person concerned with the child’s care, welfare, and development.
How do you apply for a recovery or location order in Family Court?
You can seek a child recovery order by applying to the Federal Circuit and Family Court. The type of application will depend on the following:
- There is a parenting order in place. In this case, you should submit an initiating application for a location or recovery order.
- You have a parenting order application before the Court. Instead of an initiating application, the Court will require an application in a proceeding for location or recovery orders.
- There’s no active or pending parenting order. Here, you must apply for a parenting order at the same time as a location or recovery order.
In addition to the application, you must submit an affidavit that states the following:
- An account of the parties’ personal history and the relationship between the applicant, the child, and the person who relocated the child;
- Details about the relationship of the parties;
- A list of previous litigation, court hearings or family law;
- Circumstances before the disappearance or removal of the child;
- Where the applicant believes the child may be and steps taken to recover the child;
- An explanation of why it is in the best interest of the child that they return to the applicant; and
- What will happen if the Court doesn’t make an order.
Why is it vital to secure a recovery order?
If talking to the other party does not work, securing a recovery order would be the best way to seek the child’s return. Aside from the child’s immediate return, the recovery order can also prohibit the person from removing the child without the applicant’s permission. The recovery order can authorise the person’s arrest if it occurs again.
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What if you cannot locate the child?
A child may be untraceable, even with the assistance of the Australian Federal Police. In this instance, you may seek a publication order when all other means have already been exhausted.
Publication order
A Publication Order is a specific type of court order that allows for the publication of information about a family law case that would otherwise be confidential. The Family Law Act generally prohibits the publication of court proceedings identifying the parties involved, especially cases concerning children. This is to protect their privacy and welfare.
A Publication Order can modify these restrictions by permitting specific details about the case to be published.
The purpose of a publication order is to help locate and recover children involved in custody disputes who have been abducted or are missing. The Court will allow specific details about the child, the abductor, or the circumstances of the disappearance to be published. By doing so, the Court aims to enlist the public’s help finding the child.
Applying for a publication order
To apply for a publication order, you must file an application in a proceeding and an affidavit – Family law and child support. This affidavit sets out the relevant facts in support of the application.
When assessing a publication order application, the Court will consider factors such as:
- The best interests of the child or children involved;
- The potential benefits of publication against the possible harm or impact on the parties and children;
- The reasons for the application include aiding in the recovery of missing children.
Conclusion
A missing or abducted child is every parent’s worst nightmare. However, legal mechanisms exist to help you locate and recover them safely. Understanding how location and recovery orders work is crucial.
Before making significant decisions, seek legal assistance to take the appropriate steps to recover your child.
If you need help with family law matters, contact us for a free discovery call.
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