Recovery orders: How to recover a child in Australia

If a parent takes a child without permission, you should consider seeking an urgent child recovery order.

By Georgia Foster, Graduate Lawyer at Roger Fritz LLP, Adelaide.

What is a recovery order?

A recovery order is a Court order which effectively authorises and directs persons, such as the police, to recover and deliver a child to:

• a parent of the child;
• a person with a parenting order which states the child is to live with, spend time with or communicate with them; or
• a person who has parental responsibility for the child

where a child has been taken from their care and not returned. You can find further reading on travelling with Financial Institutions from separated families with consent here.

In some cases, a recovery order might:

• include directions concerning the day-to-day care of a child until the child is returned, or
• authorise the arrest (without a warrant) of persons who repeatedly remove or take possession of a child.

Who can apply for a recovery order?

You may seek an urgent child recovery order if you are:

• a person who has a parenting order which states a child is to live with, spend time with or communicate with you;
• a person who has parental responsibility for a child under a parenting order;
• a grandparent of the child; or
• a person concerned with the general care, welfare and development of a child (i.e., persons without a parenting Order).

How to apply for a recovery order

To apply for a recovery order, you must file an application in the Federal Circuit Court unless you have an existing parenting matter in the Family Court.

In most cases, it is recommended that parties who do not have a parenting order apply for one when applying for a recovery order.

Persons applying for recovery orders must specify the orders they wish the Court to make and file an affidavit in support. 

The affidavit should provide details including, but not limited to:

• the history of the relationship between the applicant and the person presumed to have possession of the child;
• previous court hearings and family law orders;
• where the child lives and who he or she spends time and communicates with;
• how and when the child was taken from/not delivered to the applicant;
• the child’s likely location and the basis for this belief;
• actions taken by the applicant to locate the child;
• why it is in the child’s best interests to be returned to the applicant; and
• the potential impact on the child if a recovery order is not granted.

The Court’s role

In determining whether to grant a recovery order, the Court will regard the child’s best interests as paramount.

This means the Court will consider a broad range of factors, such as the benefit of a child having a relationship with both parents and the need to protect a child from physical and psychological harm etc.

Where the Court grants a recovery order authorising and directing persons to recover a child, you must provide a copy of the order to those persons, e.g., Australian Federal Police.

You must also notify registry staff at the Court once the child has been returned to your care.

If the child is still not recovered

To aid in the child’s location and recovery, you might consider seeking further orders from the Court, such as a location order and Commonwealth information order.

A location order requires a person to provide the Court with information that person has or obtains concerning a child’s location. 

Whereas, a Commonwealth information order requires a Commonwealth government department, such as Centrelink, Medicare and the Australian Taxation Office, to provide the Court with information concerning a child’s location in the department’s records.

Please note, the Court will only grant these orders where it is satisfied that the person or Commonwealth government department the order applies to likely possesses information concerning a child’s location.

For further information about location and recovery orders, please contact our offices or fill out the form below to request a call from our friendly team.