Key Takeaways
- A recovery order in family law is a court directive to return a missing child, ensuring the safety and welfare of the child.
- Persons concerned with care of the child, including parents, guardians or even grandparents can apply for a recovery order.
- It is highly recommended that you seek legal advice from experienced family lawyers for assistance with applications and successful execution of Child Recovery Orders.
Navigating the complex world of child recovery orders can be overwhelming, especially for those experiencing the heartache of a missing child.
Understanding the process and legal framework surrounding child recovery orders is crucial to ensure the best outcome for the child’s safety and well-being.
In this article, we’ve put together a comprehensive guide on child recovery orders, including information such as, their purpose, the parties who may be involved, and the steps required to apply for one.
If you find yourself in a situation that requires immediate assistance, please do not hesitate to contact our child custody lawyers Sydney.
What is a recovery order in family law?
In family law, a recovery order is a court directive to return a child that has been taken without permission, thereby ensuring the child’s safety and welfare. Various entities play a role in the recovery order process, such as the Australian Federal Police, who can be contacted for assistance when a child has been removed from Australia without consent or has not returned as agreed. The Federal Circuit and Family Court of Australia have the authority to issue orders that aid in determining a child’s location. This could involve instructing an individual or a commonwealth government department to provide information that is relevant to the child’s whereabouts.
Under section 67X of the Family Law Act 1975, obstructing a police officer or person authorised to take action during the execution of a recovery order is a criminal offence, especially if the child is in immediate danger. The Commonwealth Attorney General’s Department can also be contacted for assistance in situations where a child has been removed from Australia without consent or has not returned as expected.
How does a recovery order work?
A recovery order functions by instructing an individual or the police to find and return the child to someone with parenting orders or a person who has parental responsibility, and it might also include supplementary orders about the child’s care and future arrangements. Those with parental responsibility for the child or those with a court order granting them parental responsibility may apply for a recovery order.
The application process for a recovery order involves the following steps:
- Submitting an application to the court
- Providing supporting evidence
- Participating in a hearing, which could incorporate previous court hearings related to the case
A recovery order can authorise or direct a person or persons, such as police officers, to take the necessary steps to locate, retrieve, and deliver a child to one of the people listed above, by finding the child’s location.
In cases where a recovery order has been issued but the child isn’t found, it may be necessary to apply for a location order. A location order is a directive from the court that requires a person or organisation to provide information regarding the child’s whereabouts. This could be particularly useful if the child is suspected to be with a person who is not cooperating or providing the necessary information. However, it’s important to note that applying for a location order should be done under the guidance of a legal professional to ensure that all legal procedures are correctly followed.
Who can apply for a recovery order?
Parents, guardians, or any individual involved in the child’s care, welfare, or development, also known as the “person concerned”, are eligible to apply for a recovery order, including grandparents.
In situations where there are no existing parenting orders, it’s required to file an application for such orders simultaneously with the application for recovery orders.
The recovery order process
Obtaining a recovery order involves submitting an application to the Federal Circuit and Family Court of Australia, providing an affidavit with relevant information, and participating in a court hearing. When submitting an application for a recovery order, you may need to provide an affidavit.
The details that are usually included in the affidavit for a recovery order typically include:
- Information regarding the relationship between the parties
- Dates during which the parties resided together
- A description of the relationship between the petitioner and the person the child is presumed to be with
- Particulars of the child
- A concise account of the situation
- Any applicable facts and evidence that support the necessity for a recovery order.
During a court hearing for a recovery order, the court assesses the application and makes a judgement based on the situation. The court may necessitate the child to be returned to a parent or an individual with a parenting order. If the matter is urgent, the court may expedite the process and issue the recovery order within a few days.
How to apply for a child recovery orders
To apply for a child recovery order, follow these steps:
- Obtain as much information as possible regarding the child’s whereabouts.
- Submit the application to the Federal Circuit and Family Court of Australia.
- If there are no current proceedings, submit an application along with any corresponding documents, such as an Affidavit and a Letter to the Duty Registrar if necessary.
When the child’s safety is an immediate issue, seeking legal advice is recommended. Our family lawyers Sydney can provide invaluable guidance on the intricate aspects of the Family Law Act, ensuring that your application is prepared correctly and your matter is seen to as soon as possible.
In urgent situations, a request can be made for an urgent recovery order application. Here, the urgency of the situation is communicated to the court, and if deemed appropriate, the court can expedite the process, potentially leading to a quicker resolution. It’s essential to remember that every case is unique, and the court will take into account the specifics of each situation when deciding whether to grant an urgent recovery order. Therefore, the assistance of a legal professional can be invaluable in these situations.
How long does a recovery order take?
The duration of a recovery order depends on the urgency of the case, with urgent cases being resolved in 1-5 days and non-urgent cases in 2-6 weeks, as decided by the court and involving the Australian Federal Police. In urgent cases, the court may proceed with the hearing “ex parte” and may expedite the court date depending on the urgency of the matter.
The recovery order period is either indicated in the order itself or a default term of 12 months from the date of its issue. Whichever period proved to be shorter will be applicable. Various elements may have an effect on the duration of a child recovery order process in Australia, such as:
- the presence of family violence
- the safety of the child
- the cooperation of the parties concerned
- the urgency of the situation
- the workload of the court
Child recovery order and international law
If a child has been taken abroad, international legislation like the Hague Convention on International Child Abduction could be applicable. It is recommended to seek legal advice to understand the implications of the Hague Convention and other international laws that may apply. In the event of an international child abduction to a Hague Convention country, it is advisable to seek legal advice and contact the Commonwealth Attorney-General’s Department for assistance.
For situations where the child may be in a nation which is not a signatory to the Hague Convention, you may have some options available to you. Australia has various bilateral agreements with some countries that are not signatories to Hague Convention, like Egypt and Lebanon. In addition to this, you may need to seek legal assistance in that country to learn about your options, or the Consular Branch of the Department of Foreign Affairs and Trade may be able to help parents to access appropriate lawyers. You can call the Consular Branch of the Department of Foreign Affairs and Trade (DFAT) on the 24 hour hotline 1300 55 135.
How to stop a recovery order?
There are various legal grounds to cease a child recovery order in family law and it is best to obtain legal advice if you find yourself in this position. To contest a recovery order in court, a response must be filed with the Federal Circuit and Family Court of Australia, where the case will be heard and the Court will issue a verdict.
Like other family law matters that affect a child, the Court makes a decision on whether to annul or end a recovery order by prioritising the child’s best interests. Should there be compelling reasons or alterations in circumstances that necessitate the cancellation or termination of the recovery order, the court may make such a decision. Negotiating with the other party involved might be a viable option to avert a recovery order, but it is essential to comprehend the legal basis pertinent to the circumstance and to seek counsel from a family law lawyer.
Get legal help with your child recovery today
Understanding the process and legal framework surrounding child recovery orders is critical for those dealing with the heart-wrenching experience of a missing child. Getting legal advice from experienced family lawyers Australia can make it not only easier to understand all of your options but also ensures that you can navigate the complexities of the family law system and work towards a resolution that ensures the safety and well-being of the child.
Our family lawyers at Unified Lawyers are here to help with a wide range of family law issues, including those matters that involve the recovery of a child.
We also understand how challenging and terrifying being in this type of situation can be and our compassionate team is here to help you today.
Find out your next move by calling us on 1300 667 461 or using the button below to book a free, no obligation consultation.
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