Recovery orders in family law is an important concept that relates to parental child abduction. In simple terms, recovery orders in family law requires a child to be returned to:
- a parent of the child, or
- person who the child lives with, or spends time with on the basis of a parenting order, or
- a party who has parental responsibility for the child (read more about parental responsibility here)
In international child abduction cases, the family court can make recovery orders, and in essence, it demands that the party return the child to the applicant. It can be really stressful to not know about the child’s location. In this blog, we will cover important points in relation to recovery orders family law. We will explore some questions including:
- Who can apply for recovery orders?
- How to apply for recovery orders?
- How long do these orders take?
Who Can Apply For Recovery Orders Family Law?
According to Section 67T of the Australian Family Law Act (1975), the following people are eligible to apply for a recovery order for a child:
- a person with whom the child is to live as per a parenting order,
- a person with whom the child is to spend time with as per a parenting order,
- a person with whom the child is to communicate with as per a parenting order,
- a person who has parental responsibility for the child under a parenting order, or
- a grandparent of the child, or
- any other person concerned with the care, welfare or development of the child.
To read more on Section 67T of the Family Law Act, or any of the preceding or succeeding Sections, click here.
How to Apply?
We understand the amount of stress you may be feeling if you are dealing with complex issues such as your former partner taking your child away without your consent. To simplify things for you, we have prepared a list below outlining the process for making an application for recovery orders family law.
Before reading through the list, consider the scenarios below. Depending on whether or not you have a current ongoing case, you may need to either fill out a form or supply an affidavit. If there are ongoing proceedings, then you may use this link to check which forms to fill.
Scenario #1: Proceedings are Ongoing
If you have already started proceedings with the court for parenting orders, to apply for a recovery order you need to file the following:
What should the affidavit include?
It is important that the affidavit includes all the important and relevant points in relation to the matter. Consider the points below when preparing an affidavit:
- List of all previous orders (final or interim), and court hearings;
- Information about the relationship between the applicant and the person who has allegedly taken the child away.
Also consider using the following questions as prompts when filling out the affidavit:
- Where does the child usually live?
- When was the child taken away from you?
- How was the child taken away from you?
- When was the child not delivered to you (suppose there was a child handover arrangement in place)?
- Why would it be in the child’s best interests to be recovered and returned to you?
Scenario #2: No Ongoing Proceedings
On the other hand, if there is no ongoing proceeding in place, you have to include the application for recovery order as part of the application for parenting order. To apply for recovery orders in Australia, you will need to follow these general steps:
- Gather necessary information: Collect all relevant information and documentation related to the recovery order. This may include court orders, parenting plans, evidence of existing orders, and any other relevant documents.
- Determine the appropriate court: Depending on your specific circumstances, you need to determine which court to approach. In Australia, the Family Court of Australia or the Federal Circuit Court of Australia typically handle family law matters.
- Complete the application form: Obtain the appropriate application form from the court where you wish to file your recovery order application. You can usually find these forms on the court’s website or by visiting the court registry in person.
- Fill out application forms: Carefully complete all application forms, providing accurate and detailed information about your situation. Ensure you include all relevant details and attach any supporting documents as required.
Further Steps
- File the application: Once you have completed the application form, file it at the appropriate court registry. There may be filing fees, so be ready to pay the fees, or you may be eligible for fee waivers in certain circumstances.
- Serve the application on the other party: After filing the application, you must serve a copy of the application and any accompanying documents on the other party involved in the matter. You can typically do this through personal service or via registered post. Ensure you comply with the court’s specific requirements for service.
- Attend court hearings: After the party has filed and served the application, the court will set a hearing date. Attend the scheduled court hearings and present your case before the judge. It is essential to have legal representation to advocate for your interests effectively.
- Follow court orders: If the court grants your recovery order, you must comply with the orders given. Make sure you fully understand the terms of the recovery order and take appropriate action to implement them.
Remember, the process for applying for recovery orders may vary depending on the specific circumstances of your case and the court involved. It is always advisable to seek legal advice to ensure you are taking the correct steps and complying with all legal requirements.
Power or Authority of Recovery Orders in Family Law
If a recovery order is in effect, there are a couple of things for which it has authority. This includes:
- Give provisions and information about the care and well-being of the child once they have been returned, i.e. provide information about how the child will be looked after;
- Direct authorities like police officers (such as Australian Federal Police) to commence action to ensure the child is returned to the relevant party;
- Prevent the person who took the child from removing the child again.
Contact Our Family Lawyers for Legal Advice
It’s advisable to consult with a family lawyer who specialises in family law matters such as family violence, missing child, including recovery orders. They can provide you with guidance and assist you throughout the process. Have you attended previous court hearings? For more information on this topic, do not hesitate to contact our firm today for legal assistance.
Reach out to us here.
