A child suddenly being unilaterally removed from a parent or caregiver can cause the highest levels of distress to any family.
However, the Court has a mechanism to deal with unpermitted child abduction or relocation, regardless of whether the party seeking the recovery of a child has Parenting Court Orders or not.
The party seeking the return of a child can apply to the Court for a Recovery Order.
This Order is typically legally complex, treated with high priority, and can involve external agencies such as the Australian Federal Police (AFP).
The legal risks and complexities involved in seeking such an order are critically high.
A poorly executed or unwarranted Recovery Order Application could render you liable for the legal costs of the other parties and jeopardise your parenting matters in their entirety.
On the other hand, it is often the case that the longer a child is not recovered, the more difficult it may become for a Court to order that they be returned. Furthermore, a delay or failure to seek the return of the child could have a significant negative impact upon the welfare of the child.
It is critical that if you are considering making a Recovery Order Application to the Court you seek legal advice prior to commencing any action.
What is a Recovery Order?
Recovery Orders are defined in section 67Q of the Family Law Act 1975 . It is an order of the Court that can require a child be returned to a:
- parent of the child;
- person who has a parenting order that states the child lives with, spends time with or communicates with that person; or
- person who has parental responsibility for the child.
Who can apply for one?
You can apply for a Recovery Order if you are one of the following parties:
- A person who the child lives with, spends time with or communicates with as stated in a parenting order;
- A person who has parental responsibility for the child as outlined by a parenting order; or
- A grandparent of the child, or a person concerned with the care, welfare and development of the child.
A common issue that parents face, is that they may be the person who the child lives with, however, there are no parenting orders in place.
In the event that there are no parenting orders in place, a parent can still apply for a Recovery Order on the basis that they are ‘a person concerned with the care, welfare and development of the child’.
How do you apply for Recovery Orders?
There are different processes for applying for a Recovery Order.
- If there are current Parenting Orders in place – an Application in a Case should be filed.
- If there are no Parenting Orders in place – an Initiating Application must be filed with the proposed Interim/and or Final Orders.
In either event, an affidavit must also be filed with the Application that outlines what has occurred, and why the child ought to be returned to the care of the parent who has applied for the order.
Depending on the circumstances of the matter, there may also be additional documents that should be filed.
For example, when filing an Initiating Application, a ‘Notice of Child Abuse, Family Violence or Risk’ must also accompany the Application. If you are asking that the Court hear the matter urgently, it would also be necessary to prepare a cover letter to the Court that addresses why the matter should be urgently heard.
To ensure that you prepare the correct documents to accompany an Application, it is strongly advised that legal advice be obtained with respect to this issue.
When considering whether to Order that a child be returned, the Court is likely to consider the following:
- Any history of abuse, neglect, family violence, or other issues of risk to the child;
- The background and history of the parties and the child;
- The nature of the relationship between the parties and the child;
- Any ties between the child and where they were taken to/from, such as schooling and extracurricular activities;
- Where the child usually lives and what the arrangements were before the child was removed;
- Any impact that a change in living arrangements may have upon the child;
- How and when the child was removed;
- Any attempts at retrieving the child;
- The living arrangements and home environment of the child; and
- Any other factor the Court considers relevant
Overall, the Court must consider the best interests of the child as the paramount consideration and will ultimately make a determination on the basis of how the best interests of the child will be met.
When can you apply?
There is no mandatory time that you must wait prior to commencing recovery proceedings. You should however, wherever possible, engage in discussions and communications with the other party to resolve these issues prior to commencing proceedings.
Depending on the circumstances, and if no agreement can be reached, it is often appropriate to commence proceedings as soon as possible. The unilateral relocation of a child can often be significantly detrimental to the child, and the return of the child will rectify these issues at the earliest opportunity.
There are currently significant wait times for applications before the court, and any delay in filing an application will potentially further delay the return of the child.
Filing as soon as possible also reduces the chances that a parent who is trying to relocate does not establish a new social, educational, community, employment, status quo, which may ultimately make it less likely that the child be returned to your care.
However, each matter is unique, and specific legal advice should be obtained prior to commencing proceedings.
What happens when my Order is heard?
On the day your matter is heard, you can appear self-represented, with a solicitor, or with a solicitor and barrister, depending on your ability to fund your legal action and the complexity of the matter.
Outcomes vary depending on the unique circumstances and evidence of each case, however, as an example, any of the following may occur:
- The Court makes a decision about your Recovery Order Application and makes Interim Orders;
- The Court may not have any capacity to hear your matter and it is adjourned for a later date and heard as an Interim Hearing; or
- The Judge makes a decision ‘in chambers’ in the days or weeks following your hearing.
The Court will always strive to reach a solution that is in your child’s best interest, so where possible, the order will not put a child at risk of physical or psychological harm.
The Court may begin by requesting that a child is voluntarily returned and that Interim Orders are put into place to determine the care of the child from the recovery onwards.
If the Court does not anticipate that a party will willingly return the child, or if a party has previously refused to return a child, an Order may be made to involve an external party (such as the AFP) in the recovery of the child.
Recovery Order applications are an extremely complex area and it is strongly advised that you obtain legal advice before considering an application of this nature.
Bennett & Philp lawyers are experienced in applying for recovery orders and are able to provide you with a free 15 minute Clarity Session to discuss your matter.
If you would like more information arising out of anything in this article, please contact Robert Sykes or Alina Rylko today.
Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
Alina Rylko co-authored this article while she was under the employ of Bennett & Philp Lawyers.