Disclaimer: This article provides general information only and is not a substitute for legal advice about your circumstances. Recovery order applications can be urgent and the appropriate legal process depends on the facts of each case. If you are concerned that a child has been taken or is not being returned as required, seek legal advice as soon as possible.

When a child is taken or kept without lawful authority, the situation can quickly become distressing for everyone involved. Whether a child has not been returned after scheduled time or has been removed without consent, there may be legal options available to help secure their return.

One of those options is a recovery order.

A recovery order is a court order made under the Family Law Act 1975 (Cth) that can require a child to be returned to a person with lawful rights or responsibilities in relation to the child. Depending on the circumstances, the order may also require information about the child’s location to be provided or authorise police to assist in locating and recovering the child.

Knowing how to get a recovery order in Australia can help you understand the steps involved and determine whether this type of application may be appropriate for your circumstances.

Recovery Orders at a Glance

A recovery order can help secure the return of a child who has been wrongfully removed or retained.

• Who can apply: Certain people with a legal connection to the child, including some people covered by parenting orders and grandparents.
• When it applies: When a child has been removed, retained or cannot be located.
• Existing orders: If no parenting orders exist, an applicant will generally need to seek them at the same time.
• Urgency: Applications can be dealt with urgently where there are safety or welfare concerns.
• Police assistance: The order may authorise police or other authorised people to locate and recover the child.

What Is a Recovery Order?

A recovery order is a court order made under the Family Law Act 1975 (Cth) that requires a child to be returned to a person who has a lawful right or responsibility in relation to the child.

Depending on the terms of the order, it may require a person to:

• Return the child.
• Provide information about the child’s location.
• Assist with locating the child.
• Deliver the child to a person named in the order.

A recovery order deals with the immediate issue of locating and returning a child. It does not necessarily determine the longer-term parenting arrangements.

When Can a Recovery Order Be Requested?

Recovery orders may be sought when a child has been removed from a person who is entitled to have the child in their care or has not been returned as required under a parenting arrangement or court order.

Examples may include:

• A parent keeps a child after scheduled parenting time.
• A child is taken without the other parent’s consent.
• A grandparent or another person refuses to return a child.
• A child is hidden to prevent contact with another person who has parenting rights or responsibilities.

The Court considers the circumstances of each matter before deciding whether a recovery order is appropriate.

Who Can Apply for a Recovery Order?

The legislation sets out categories of people who may apply for a recovery order. Depending on the circumstances, these can include:

• A person with whom the child lives, spends time or communicates under a parenting order.
• A person who has parental responsibility for the child under a parenting order.
• A grandparent.
• Another person concerned with the child’s care, welfare or development.

A person’s ability to apply depends on their circumstances and the legal relationship they have with the child.

Do You Need Existing Parenting Orders?

Not necessarily, but the position is more complicated when there are no existing parenting orders.

If parenting orders already exist, a recovery order can be sought in connection with those orders.

If there are no current parenting orders, an applicant will generally need to apply for parenting orders at the same time as seeking a recovery order. This allows the Court to consider the relevant parenting arrangements and determine the legal basis for the child’s care.

Legal advice can help clarify which applications are appropriate for your circumstances.

How Do You Apply for a Recovery Order?

Recovery order applications are generally made to the Federal Circuit and Family Court of Australia. The documents required will depend on the circumstances of the case and the orders being sought.

An application may involve:

• The relevant Court application forms.
• An affidavit explaining what has happened.
• Details about the child’s current or last known location.
• Existing parenting orders or other relevant documents.
• A Notice of Child Abuse, Family Violence or Risk where required.
• Other supporting material relevant to any safety or urgency concerns.

The affidavit should clearly explain the circumstances, including:

• When the child was removed or not returned.
• The child’s last known whereabouts.
• The existing parenting arrangements or orders.
• Why the applicant believes a recovery order is necessary.
• Any concerns about the child’s safety or welfare.
• Whether there is a risk the child may be moved again.

If urgent intervention is required, the applicant may also need to follow the Court’s procedures for seeking an urgent listing.

Can a Recovery Order Be Made Urgently?

Yes. Recovery order applications can be urgent, particularly when there are concerns about a child’s safety, welfare or whereabouts.

Urgency may arise where:

• A child has recently been taken.
• The child’s location is unknown.
• There are immediate safety concerns.
• There is a risk the child may be moved again.
• There is a concern that the child may be taken overseas.

The Court assesses the circumstances when determining how urgently a matter should be dealt with. An application should clearly explain the reasons urgent intervention is sought.

How Does the Court Decide Whether to Grant a Recovery Order?

The Court does not automatically make a recovery order simply because someone requests one.

It considers the circumstances of the case and the applicable legal principles, which may include:

• The applicant’s legal relationship with the child.
• Any existing parenting orders.
• The circumstances surrounding the child’s removal or retention.
• Any allegations or concerns involving family violence or child abuse.
• Risks to the child’s safety and welfare.
• The child’s best interests.

The Court may also consider what arrangements should apply once the child is recovered.

A recovery order therefore does not guarantee that the child will ultimately live with the applicant on a permanent basis. Longer-term parenting arrangements may need to be considered separately.

What Happens After a Recovery Order Is Made?

A recovery order is intended to assist with the child’s return, but it does not necessarily resolve the broader parenting dispute.

Who Carries Out a Recovery Order?

Depending on the terms of the order, the Australian Federal Police, state or territory police or other authorised people may assist with locating and recovering the child.

A recovery order can provide specific authority for police to take action to find and return the child. It may also require people with relevant information to provide assistance or disclose the child’s whereabouts.

Police do not generally intervene in ordinary parenting disagreements simply because one parent asks them to. The terms of the court order and the circumstances of the matter determine what action may be taken.

What Happens After the Child Is Recovered?

Once the child has been recovered, further legal steps may still be necessary.

The Court may need to consider issues such as:

• Where the child should live.
• How much time the child should spend with each parent.
• Communication arrangements.
• Future parenting arrangements.
• Compliance with existing parenting orders.

Recovery proceedings may therefore form part of a broader parenting dispute.

Interstate and International Recovery

A child may be taken to another part of Australia or overseas, and the legal response can differ depending on where the child is located.

If the Child Has Been Taken Interstate

A recovery order can be used to assist with the recovery of a child who has been taken to another Australian state or territory.

Moving a child interstate does not necessarily prevent the Court from making or enforcing appropriate orders. Depending on the terms of the order, police may assist in locating and recovering the child.

If the Child Has Been Taken Overseas

International child recovery matters can involve additional legal processes and may be significantly more complex.

Depending on the countries involved, international child abduction laws and treaties, such as the Hague Convention on the Civil Aspects of International Child Abduction, may apply.

If you believe a child has been taken overseas without the required consent or authority, seek urgent legal advice. International matters can be highly time-sensitive.

What Should You Do If Your Child Has Not Been Returned?

If your child has not been returned as required, prompt action may be important.

Consider:

• Confirming the child’s last known location.
• Keeping copies of relevant parenting orders.
• Saving relevant messages, emails and other communications.
• Recording when the child was due to be returned.
• Seeking legal advice promptly.
• Contacting police if there are immediate safety concerns.

Provide your lawyer with as much relevant information as possible, including existing court orders, parenting arrangements, recent communications and information about the child’s whereabouts.

Acting promptly can help ensure that the appropriate legal options are identified and that any urgent application is supported by relevant evidence.

The Bottom Line

A recovery order can help secure the return of a child who has been wrongfully removed or retained. The Federal Circuit and Family Court of Australia considers the circumstances of each case, including the child’s safety, welfare and best interests, before deciding whether an order should be made.

The process can be particularly urgent when a child’s whereabouts are unknown, there are safety concerns or there is a risk the child may be moved again. If no existing parenting orders are in place, an applicant will generally need to seek parenting orders at the same time as the recovery order.

If your child has not been returned or has been taken without lawful authority, obtaining legal advice promptly can help you identify the appropriate legal options and take the necessary steps.