If there is a parenting order in place and one parent does not return the child to you then you can apply to the Court for a recovery order. This means that you are asking the Court to order that the other parent or person return the child. A recovery order will say that the child should be spending time with you and is enforceable by the police and other authorities.
If you don’t have already have parenting order you can apply seeking parenting orders at the same time of the recovery order.
A grandparent is also able to apply for a recovery order and a grandparent is in the higher position that they do not need to have an existing parenting order in place. A grandparent is able to apply for a recovery order as of right. There are other people who may have the parenting responsibility of the child that can apply for a parenting order as well.
A recovery order is one of the more urgent applications that the Federal Circuit Court of Australia will hear. To apply for one an Affidavit, Application, Notice of Risk and letter of urgency need to be produced to the Court at the time of filing. A Registrar, or Court officer, will then consider the application and determine when it will be listed.
Initially you would start by talking to the parent and if you could not, then you can try to have other people such as family members or friends speak to the other person.
If you can’t talk to the other person and contact them. It is also possible that you are not aware of where the child is. If that is the case, then a location order can be applied for and this will usually be directed to the Commonwealth for information on where the child may be.
An application is filed at the court and if you have a current parenting case you join the application together. If you don’t have a parenting order then you apply at the same time as the recovery order.
The application is a request for the authorities to act and as a part of the application you request what action you want the authorities to take. This is usually for the Australian Federal Police to find and recover the children to you.
You must also file an affidavit to support your application. Your affidavit will outline important points of the situation to help the court make their decision.
This includes the following:
In making a recovery order the Court will look at how best to return the child to its parent without causing undue hardship to the child. This means that where possible the Court will want the person who has taken the child in breach of a Court order to return the child voluntarily. If that is not the case, then an order can be made authorising the Australia Federal Police to recover the child.
The process can be almost immediate for serious matters or can take a week or more for less serious matters. The court will usually try to speed up the matter and get the closest court date as possible. It is best to seek expert legal advice about your rights early so that swift and decisive action can be taken.
Once the order is in place the AFP can intervene and look for the child to return them to you or as per the orders.
If you are a party and do not agree with the recovery order you will need to make your own application to the court to seek an amendment to the order. In the meanwhile, you will need to comply with the recovery order.
If you have custody issues and need to apply for a recovery order our children’s lawyers can assist. We can act in urgent matters and help you through the legal process of applying for a recovery order or to change existing orders.
Both parents have a say in the how and where the child lives and this includes which state. If a parent or other has taken the child interstate to live against your wishes you can obtain a recovery order for them to return the child to the state (or territory) you have lived in.
For a child to obtain a passport, both parents must sign the application form. If you do not want your child from leaving Australia, you can pre-emptively apply for an order that prevents the child from being issued a passport and leaving the country.
Alternatively, if a party does not agree then the other party can apply to the court to allow them to travel overseas with their child.
Both scenarios require an application to be made at the relevant court.
If you are living in Australia you can apply to the Australian Court to have your child brought home if the country is a signatory to the Hague Convention. Such a relationship exists between Australia and New Zealand and if a court order is sought the person must return the child to you.
If a child has expressed their desire to stay with you and that is in breach of a parenting order or agreement, then you will have to apply to the court to amend the order or risk breaching it. It is often a contributing reason as to why a parenting order is breached. The wishes of the child can be taken into consideration when making parenting orders by the court, but the proper process must be followed for it to be effective and lawful.