Recovery Orders

Child custody disputes and divorce go hand in hand. It is common in family law for one parent to overhold or to refuse to return children to the other parent. In circumstances such as these, it may be necessary to apply for what is known as a ‘Recovery Order’ with the help from a family lawyer.

What is a Recovery Order?

A recovery order is defined in section 67Q of the Family Law Act. It is an order of the Court that may require a child to be returned to a parent, a person with a parenting order, or a person with parental responsibility.

Essentially a recovery order allows the police to find and return your children to you. If you do not have an order that the children live with you or spend time with you, you may need to apply to the Court for such an order as well as a recovery order. This can be done at the same time.

How To Get A Recovery Order If A Child Has Been Taken While Co-Parenting

In Australia, recovery orders are legal orders issued under the Family Law Act by the Federal Circuit & Family Court Of Australia under the Family Law Act 1975 to help recover a child who has been taken or kept unlawfully by one of the parents or a third party. These orders are generally issued when a child is not being returned as per an existing parenting order or if there is a risk that the child may be removed from Australia.

Understanding Recovery Orders In Australia

In Australian family law, children of divorced or separated parents must have an informal parenting plan, consent orders, or parenting orders in place that outline where their child lives. If a child is withheld by one parent or another person, a recovery order can be sought through the Federal Circuit and Family Court of Australia.

This can occur if a child isn’t returned as per the parenting orders in place or when there are concerns that they may be removed from the country or at risk of harm. Recovery orders are typically used when a parent or someone else refuses to comply with parenting arrangements, especially those that involve returning the child to the other parent after spending time with them.

They are also used if a child has been unlawfully taken or retained or if there is a concern the child might be taken out of the country.

Who Can Apply for a Recovery Order?

A parent or anyone who has parental responsibility for the child can apply for a recovery order. This includes people like grandparents or others with a formal arrangement to care for the child. The application is usually filed in the Federal Circuit and Family Court of Australia.

A recovery order can be issued when there is evidence that the child is not in the care of the person they are supposed to be, or if they are at risk of being taken or kept unlawfully. It is important that there is a parenting order already in place that has been breached.

This could be a Parenting Plan, Consent Orders that both parents have agreed upon, or a court-ordered arrangement. Even if there are no orders in place, a court application can still be made when there are concerns for the child’s whereabouts or wellbeing or if the child has not been returned on an agreed-upon schedule.

How Does A Recovery Order Work In Family Law?

A recovery order directs the return of the child to the person who has the right to care for them according to the parenting orders. In some cases, the order may allow police officers or other authorities to physically remove the child and return them to the parent they should be with. If this happens, authorities will always do their best to ensure that recovery occurs when the parent receiving the child is able to be present.

The court might also issue an order to stop a parent from removing the child from the jurisdiction (e.g., from leaving the country) by cancelling passports or notifying immigration authorities.

A Missing Child – Or A Parent Withholding?

For most parents, the thought of having a child withheld by a co-parent or being unaware of where their child is is one of the most distressing and heartbreaking situations they can find themselves in. This is even more difficult if there are concerns that a child is in immediate danger or may be taken to an unknown location or out of the country.

The key difference between a missing child and a parent withholding a child is the initial situation: a missing child often involves the child being unlawfully taken, with unknown whereabouts, while a parent withholding a child is usually a breach of existing parenting arrangements where one parent refuses to comply with the agreed-upon terms.

In both cases, the courts focus on the best interests of the child, but the processes differ slightly based on the specific circumstances. When dealing with a missing child, the courts may be more likely to issue immediate recovery orders and involve law enforcement, especially if there’s an international aspect. On the other hand, when one parent is withholding a child, the process is more likely to involve enforcing compliance with existing orders and may involve consequences for the parent withholding the child.

In some cases, the two may have crossover, which is why it’s important to seek legal advice as early as possible.

Missing Child

A missing child situation generally involves a scenario when a parent or person known to the parent/s takes a child, and the child’s whereabouts are unknown. There would also be a concern that the child has been abducted, may be taken further away or overseas, and/or is at risk of harm.

How the Courts Deal with a Missing Child:

• Immediate Concerns: When a child is missing, the situation may be considered urgent, especially if there’s a risk to the child’s safety, health, or wellbeing. In this case, the court will prioritise urgent protection.
• Application for a Recovery Order: The parent or caregiver can apply for a recovery order to retrieve the child, particularly if there’s a breach of an existing parenting order or there is suspicion the child has been unlawfully removed or hidden. The application may be filed in the Federal Circuit and Family Court of Australia.
• Location Orders: If the child’s whereabouts are unknown, a location order may be requested. This compels individuals or agencies (such as schools, doctors, or relatives) to provide information on the child’s whereabouts.
• Involvement of Law Enforcement: If the child is believed to have been abducted or unlawfully taken, police will be involved immediately. The courts can issue orders to the Australian Federal Police (AFP) or other law enforcement agencies to locate and recover the child.
• Watch Lists and Alerts: If there is a risk of the child being taken overseas, the court may place the child on an international watch list with immigration authorities. This ensures the child cannot leave the country without proper consent or court order.
• Hague Convention (if applicable): If the child has been taken outside of Australia and the country is a signatory to the Hague Convention (a ‘Hague Convention Country) on the Civil Aspects of International Child Abduction, the court may seek the child’s return through international legal mechanisms.

Process:

1. Application: If a child is missing, a parent can apply to the court for a recovery order (and location order).
2. Court Hearing: The court will hold an urgent hearing to assess the circumstances and issue appropriate orders to recover the child.
3. Law Enforcement Involvement: The police will be involved if necessary to locate the child or return them to the custodial parent.
4. International Considerations: If the child is taken overseas, international laws and procedures (e.g., the Hague Convention) may be invoked to ensure the child’s return.

A Parent Withholding A Child

A parent withholding a child refers to situations where one parent has the child in their care but refuses to return them to the other parent in violation of a parenting order or an informal parenting agreement.

How the Courts Deal with a Parent Withholding a Child:

• Breach of Parenting Orders: If there is an existing parenting order in place, and one parent withholds the child (for example, by not returning the child after an agreed visit), the situation is considered a breach of the order. In this case, the other parent can apply for a recovery order to have the child returned.
• Contravention Orders: If the withholding parent refuses to return the child as ordered by the court, the other parent can file for a contravention order. This can result in legal consequences for the parent who is withholding the child, such as frivolity, penalties, and, in some cases, imprisonment.
• Enforcement of Orders: If a recovery order is issued, it can be enforced by law enforcement agencies, who can assist in physically returning the child to the parent entitled to their care.
• Concerns of Parental Alienation: In some cases, if a parent is withholding a child due to parental alienation (trying to turn the child against the other parent), the court will consider the emotional impact on the child. If the alienation is found to be harmful, the court may alter custody or order counselling or supervised contact.
• Family Violence: If the withholding parent claims that they are withholding the child for safety reasons (such as child abuse or family violence), the court will assess the risk to the child. The parent withholding the child must provide evidence of the harm or risk involved, such as a family violence order or police reports. In such cases, the court may temporarily delay a recovery order to ensure the child may still be issued the order once the safety concerns are addressed.

If you are currently in this situation – please contact your local police immediately, or speak directly to the Australian Federal Police if there is any concerns that your child may be removed from Australia, before seeking legal assistance.

What Steps Need To Be Taken To Apply For A Recovery Order?

The legal process for a recovery order application is outlined below. Please contact our team for assistance with the application or representation on your court date.

Step 1: Apply to the Court

The parent seeking the recovery order must file an application with the Family Court or Federal Circuit Court. The application should include evidence that the child is being unlawfully withheld or that the parenting orders have been violated.

Step 2: Urgency Assessment

If the situation is urgent, the court may issue the recovery order within 24 to 48 hours. The application can be made on an urgent basis if the child’s safety or wellbeing is at risk.

Step 3: Evidence & Court Hearing

The applicant must provide evidence of the violation of the parenting order, including details about where the child is and any attempts to resolve the issue.

Step 4: The Court Decision

The court will consider the best interests of the child and issue a recovery order if deemed appropriate. The court may also issue other orders, like location orders or contravention orders.

Step 5: Enforcement

If the recovery order is not complied with, law enforcement may intervene to physically return the child to the other parent.

Costs Involved With A Recovery Order Through The Federal Circuit & Family Court Of Australia

Applications for a recovery order need to be made through the FCFCOA. The costs of applying for a recovery order include court filing fees, legal representation fees and possible costs associated with enforcement (e.g., police involvement).

Fees will depend on how the recovery order is filed and if parenting orders are applied for at the same time. You can view current filing fees for an application here. When legal representation is involved, costs can rise significantly.

How Are Recovery Orders Enforced?

If the person who has the child does not comply with the recovery order, the police can intervene to enforce it. In certain circumstances, if a person is found to be in contempt of court (by not complying with a recovery order), they may face legal penalties, such as fines or imprisonment.

Interstate & International Recovery

If a child is taken across state borders, a recovery order can apply across Australia under the Family Law Act. The police in different states will cooperate to locate and return the child. If there is a risk the child may be taken overseas or the child’s whereabouts are unknown, the court can also issue a location order, which helps to find out where the child is located.

Additionally, Australia is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, which helps return children who have been unlawfully removed from the country.

Watch Lists

• If there is a concern that the child may be taken overseas, the court may place the child on a watch list with Australian immigration authorities. This can prevent the child from leaving the country without the appropriate consent.
• The Australian Federal Police and Customs can be notified to prevent the child’s international travel.
• If there is a risk the child may be taken across state borders, the court may also issue an interstate alert.

Child Protection & Safety Concerns

In cases where the child’s safety or wellbeing is at risk, a recovery order may also be accompanied by a protective order, ensuring the child’s immediate safety. When issuing recovery orders, the court considers the child’s best interests, including their safety and wellbeing. This often involves assessing any risks of harm the child might face from either the parent or other individuals involved.

How Long Does A Recovery Order Take?

The time it takes to issue a recovery order can vary depending on the case’s complexity. In urgent situations, the court may issue an order quickly (within 24–48 hours). In less urgent situations, a hearing may take longer.

Conditions Attached to a Recovery Order

Recovery orders can have conditions attached, such as returning the child to the parent with whom they were supposed to be living or other provisions aimed at protecting the child’s emotional or physical wellbeing. The orders can also include supervised contact or restrict contact with one of the parents if there is a concern for the child’s safety.

Legal Help & Support

Parents seeking a recovery order are encouraged to seek legal advice, as these orders can be complex and may require specific evidence and documentation. Our family lawyers can assist you with your recovery order application; please get in touch.

Location Orders

Location orders are court orders issued to determine a child’s whereabouts when there are concerns that the child may have been unlawfully withheld or taken away from the other parent. These orders can require individuals, organisations, or government agencies to provide information about the child’s location, such as a school, doctor, or relative.

A location order may be requested when there is a suspicion that the child has been moved to a new address or if the other parent is not disclosing the child’s whereabouts. The courts can issue a location order during the process of making or enforcing a recovery order.

Contravention Orders

A contravention order is issued when one party breaches a parenting order, such as failing to return the child at the scheduled time or otherwise not complying with the terms of an existing order. If a recovery order is not followed (for example, a parent does not return the child as required by the order), this could be seen as contravention.

The other party may apply to the court for a contravention order, and the court may impose penalties such as fines, changes to the existing parenting arrangements, or even imprisonment. The court will usually only enforce a contravention order if there has been willful disobedience, and there may be some leniency if there are extenuating circumstances.

Are There Exceptions To Recovery Orders?

There are limited exceptions when a parent can contest a recovery order, including:

• If returning the child would put the child at risk of harm or abuse.
• If the parent can prove that the other party poses a danger to the child (e.g., a history of domestic violence).
• In cases where the child or parent is unwell and cannot travel safely, this should be substantiated with medical evidence.
• In circumstances where it isn’t reasonable or practical to return the child, for instance, if a flight has been missed, a natural disaster has occurred, an emergency has occurred, or other one-off circumstances surround the incident, these matters would be communicated clearly and not pose any issue in a healthy co-parenting situation.

Addressing Disagreements Regarding Recovery Orders

If a parent disagrees with a recovery order being made against them based on any of the above factors, the courts will require some evidence. If there are parenting orders in place and one parent feels it’s necessary to keep a child for their safety, they would generally need to apply to the courts for a variation of orders to ensure no contraventions occur.

If the parent has a legitimate concern about the child’s safety (e.g., family violence), they should immediately seek a family violence order or a court order that reflects their concerns. A parent who withholds a child without a valid exception may face serious legal consequences. Legal advice should always be sought in such cases.

Withholding A Child Due To Family Violence Or Risk Of Child Abuse

If a parent and/or children are affected by family violence, a parent may be reluctant to return the child if they fear the other parent poses a danger. In such cases, the parent should seek protection through a family violence order or request that the court make urgent alterations to parenting orders that protect the child’s safety.

The court will assess the risk of harm to the child and may issue orders allowing the parent and child to remain in an unknown or protected environment. If the threat of harm is real, the court may also delay or modify a recovery order. It’s essential to seek support and legal advice if these factors are associated with the withholding of a child.

If a parent order has a child in their care because they are withholding them due to concerns for the child’s safety (like domestic violence, abuse, or abduction risk), the parent would likely need to seek modifications or alterations to the existing parenting orders to legally justify their action of withholding the child and to protect themselves from potential legal consequences (like a recovery order issued by the other parent).

If You Are Withholding A Child Due To Safety Concerns, Apply To The Courts For Orders To Protect Their Safety

If one parent is withholding a child from the other due to genuine safety concerns, they should apply to the court for a modification of the existing parenting orders or seek urgent orders to explain why they had to withhold the child. This would involve asking the court to formally alter the existing orders to reflect the child’s current situation and ensure their safety.

“If the parent has already withheld the child to protect them from harm, they can explain the situation to the court and seek an urgent parenting order or variation of the existing order. The court will consider the protective reasons for withholding and may issue a recovery order if necessary to ensure the child’s safety and return to the other parent.”

Withholding a child from the other parent is unlawful when there are parenting orders in place, which is why it’s important to protect yourself if there are genuine reasons for doing so. Seeking support from a family lawyer and gathering evidence and any supporting documents before the court hearing will help to ensure the application is acted on quickly.

Apply for Urgent Parenting Orders

The parent should file an urgent application to the Federal Circuit Court & Family Court of Australia to vary the existing parenting orders. They would need to explain that they are withholding the child due to genuine safety concerns, such as fear of family violence, abuse, or abduction. If there are no parenting orders in place, a parent can apply for parenting orders at the same time as they apply to a court for a recovery order.

Provide Evidence

The court would likely want to see evidence supporting the parent’s claims, such as police reports, medical records, family violence orders (if applicable), or affidavits detailing the circumstances that led to withholding the child.

Seek Protection Orders

If the parent fears further harm from the other parent (e.g., continued abuse or threats), they should consider applying for family violence orders or seeking the court’s help to ensure the child’s safety while the case is being resolved.

The parent who is withholding the child may not face a recovery order if the court agrees with the reasons for withholding. Instead, the court may issue interim orders or urgent parenting orders to protect the child’s welfare while the matter is being resolved. The parent seeking the child’s return (the other parent) can also apply for a recovery order, but the court will consider safety concerns when making its decision.

When A Violent Or Abusive Parent Withholds Children

If a violent or abusive parent takes a child, the other parent can apply for a recovery order along with an urgent protection order if there is a risk to the child’s safety. In serious matters, police should be notified immediately, and the child should be added to an airport watchlist if there is any chance of a flight risk.

The court takes allegations of violence or abuse seriously and may issue orders to prevent further contact with the abusive parent or even grant supervised visits if necessary. If there is evidence of family violence, the court might prioritise protecting the child from the abusive parent and may issue orders that restrict or deny access until safety is ensured.

Parents Withholding Children – Coercive Control, Parental Alienation

Coercive control is a form of psychological and emotional abuse, often involving threats, manipulation and control. In cases where one parent is controlling the other through coercive means, it can significantly impact the child’s welfare.

Parental alienation occurs when one parent attempts to turn the child against the other parent, often by undermining their relationship or presenting false accusations. This can result in the child refusing to see or communicate with the targeted parent.

If coercive control or parental alienation is suspected, the court will assess the impact on the child’s emotional health and may issue appropriate orders to protect the child and foster a relationship with both parents, provided the child’s safety is ensured. A parent who is withholding a child in these situations risks facing serious legal consequences, including a change in custody arrangements or restrictions on contact.

Consequences Of Recovery Orders

The main consequence of a recovery order is the return of the child to the person entitled to care for them, typically the primary caregiver, as determined by the parenting orders. If the person withholding the child refuses to comply, they could face legal penalties, including fines or imprisonment for contempt of court, especially if concerns have been raised in previous court hearings and one parent has not been compliant.

The child’s emotional wellbeing can also be affected, as the child may experience stress, confusion, or trauma during the enforcement of the recovery order. In extreme cases, ongoing defiance of recovery orders may lead to changes in custody arrangements or restrictions on future contact.

Get The Support You Need Today

If your child has been withheld from you or you’re facing concerns about your child’s safety, it’s important to take action quickly. Whether you’re seeking assistance with a recovery order or addressing urgent safety concerns related to a family law case, our experienced family lawyers are here to guide you.