If a child/children have been moved by a parent or otherwise been withheld without the consent of the other parent, a Recovery Application can be filed with the Court for a Recovery Order. A parent, grandparent or other person with a significant interest in the child can also issue a recovery application if the other parent refuses to return the child/children to them at the conclusion of their time with the child/children.
Depending on the seriousness of your situation, we may need to consider a Hague Convention application if your child has been taken overseas or a location order being sought by the Court if you do not know where your child has been taken.
It is always better to be proactive in this space, and we have several options to protect your time with a child and seek that it be re-established. Our clients sometimes regret that they did not seek advice earlier, but never regret seeking legal advice proactively.
A recovery order helps return a child to you. This may be when they have been taken from you wrongfully, or when they have been taken but not returned. A child may be returned to you under a recovery order if you are a parent of the child, if you spend time or communicate with them under a parenting order, or you have parental responsibility for them.
A recovery order may also allow other acts such as:
• Returning the child to someone else who may then return them to you
• Allowing premises or transport to be searched for missing children
• Directing how a child is to be cared for until they are returned
• Authorising the arrest of a person who has taken a child
If a person is seeking a recovery order, you should consider returning the child to them as soon as practicable. They may obtain an order requiring you to return the child, and potentially preventing you from removing the child again.
If there is a parenting order about a child and you take them outside of Australia, a recovery order may leave you liable to be found guilty of a criminal offence. This could result in up to three years imprisonment if you are found guilty.
A preventative measure to avoid a recovery order being made against you is to talk with the other party about any plans you may have to take the child away. Examples of this might be for a holiday or moving away. Reaching an agreement should help to avoid an application for a recovery order.
There are concerns that some people might be using recovery orders to perpetrate family violence.
Family violence is defined as abusive, threatening, coercive, controlling or dominating behaviour towards a family member. It needs to cause the family member to fear for their or another’s safety. Some people report that recovery orders are sought against them as a controlling measure. They report that they are controlled by recovery orders that restrict their freedom of movement, and to prevent them seeing their child.
If you are concerned that your former partner is using recovery orders to perpetrate family violence against you, you might be able to seek a family violence protection order. This order might prevent them from seeking a recovery order. You should seek legal advice before doing this.