Recovery Orders- my partner has taken the children how do I get them back?

Publications > Recovery Orders- my partner has taken the children how do I get them back?

 

January 2012

When do I need a recovery order?   A recovery order may be necessary when a parent fails to, or refuses to return the child to the other parent, or the child simply cannot be found.  Recovery orders are made for recovering a child from a place within Australia.  If the child has been taken overseas, then the child has been abducted and you should seek urgent legal advice.

 

What is a recovery order?

 

A recovery order is an order made by a court exercising Family Law jurisdiction that requires the return of the child to:-

 

1. A parent of the child; or
2. A person with whom the child is to live under a parenting order; or
3. A person with whom the child is to spend time under a parenting order; or
4. A person with whom the child is to communicate with under a parenting order; or
5. A person who has parental responsibility for the child.

 

A recovery order authorises a person or persons (such as the Police) to recover a child using force if need be, and or, to stop and search any vehicle, vessel or aircraft and to enter any place for the purpose of finding a child.  It can also provide for the day to day care of the child until the child is returned or delivered.

 

A recovery order may also prohibit a person from removing or taking a child again, and may allow for the arrest of that person without warrant if that person again removes or takes the child.

 

Who can apply for a recovery order?

 

As well as the persons listed above, grandparents and any other person concerned with the care, welfare or development of the child is able to apply for a recovery order.

 

How does a court decide whether to make the recovery order?

 

The court’s paramount consideration is the best interests of the child.  The best interests are determined with regard to factors such as family violence, the child’s views etc (see our Best Interests article).

 

How long does the recovery order remain in force?

 

The recovery order will remain in force for the period specified in the order, or 12 months, whichever is the shorter period.

 

What happens when the court makes the recovery order?

 

If the court makes an order requiring another person (such as the Australia Federal Police) to recover the child, you must give the AFP a copy of the order. 

 

The AFP will generally recover a child when the person to whom the child is to be returned, is in a position to receive the child and is close by. This is especially so if the child is very young or does not speak English.

 

If the child is returned to you (whether by recovery, or by compliance of the other person), you must notify the court as soon as possible.

 

Contact

 

Please ensure you seek confidential and personal legal advice for your family law situation before applying to the court for a recovery order.  Contact Brisbane family lawyer and accredited specialist, Tuskeen Jacobs at t.jacobs@rostroncarlyle.com or 07 3009 8444.

 

Helena Redmond
Trainee Solicitor, Family Law